Case5:10-cv-05022-LHK Document162 Filed05/01/12 Page1 of 39
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`Case No.: 5:10-cv-05022-LHK
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`ORDER GRANTING DEFENDANTS’
`MOTION FOR SUMMARY
`JUDGMENT; GRANTING IN PART
`AND DENYING IN PART
`DEFENDANTS’ SECOND SPECIAL
`MOTION TO STRIKE
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` Plaintiff,
`v.
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`DOES 1-10, inclusive,
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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` Defendants. )
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`ART OF LIVING FOUNDATION, a California
`corporation,
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`Plaintiff Art of Living Foundation (“Plaintiff” or “AOLF-US”), a California corporation
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`and the United States branch of the international Art of Living Foundation based in Bangalore,
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`India, brings this action for copyright infringement under 17 U.S.C. § 501 et seq., and
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`misappropriation of trade secrets under California Civil Code § 3426 et seq., against Does 1
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`through 10, former adherents-turned critics of the Art of Living Foundation. Before the Court are
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`two motions brought by two Doe Defendants, known pseudonymously as “Klim” and “Skywalker”
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`(“Defendants”), appearing specially via counsel: (1) motion for summary judgment on the
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`copyright infringement claim, see ECF No. 111 (“MSJ”); and (2) second special motion to strike
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`the trade secret cause of action pursuant to California Code of Civil Procedure § 425.16, i.e.,
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`Case No.: 5:10-CV-05022-LHK
`ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART
`SECOND SPECIAL MOTION TO STRIKE
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`For the Northern District of California
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`United States District Court
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`Case5:10-cv-05022-LHK Document162 Filed05/01/12 Page2 of 39
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`California’s “anti-SLAPP statute,”1 see ECF No. 135 (“MTS”). The Court held a hearing on these
`motions on January 12, 2012. Having considered the parties’ submissions and argument and the
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`relevant law, and for the reasons explained below, the Court GRANTS Defendants’ motion for
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`summary judgment on the copyright infringement claim, GRANTS Defendants’ second special
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`motion to strike the trade secrets misappropriation claim as to Defendant Klim, and DENIES
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`Defendants’ second special motion to strike the trade secrets misappropriation claim as to
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`Defendant Skywalker.
`I. BACKGROUND2
`A. Facts
`1. Art of Living Foundation
`The Art of Living Foundation (“AOLF”), founded in 1981 by “His Holiness Sri Sri Ravi
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`Shankar” (“Shankar”), is an international nonprofit educational and humanitarian organization
`based in Bangalore, India, with chapters in more than 140 countries.3 First Am. Compl., ECF No.
`85 (“FAC”), ¶¶ 1, 17, 22, 24. Plaintiff here, also called Art of Living Foundation (“Plaintiff” or
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`“AOLF-US”), is the United States chapter of AOLF and is a California non-profit corporation
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`based in Goleta, California. FAC ¶¶ 2, 12; Decl. of Ashwani Dhall in Opp’n to Defs.’ Mot. to
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`Dismiss, ECF No. 40 (“Dhall Decl.”), ¶¶ 9, 11, 13.
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`All AOLF chapters, including Plaintiff AOLF-US, are dedicated to teaching the wellness
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`and spiritual lessons of Shankar. FAC ¶ 31; Dhall Decl. ¶¶ 9, 13. Plaintiff offers courses on
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`breathing, meditation, and yoga, focusing on “Sudarshan Kriya,” a rhythmic breathing technique.
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`Dhall Decl. ¶¶ 14-15. One such course is called the “Art of Living Course,” which teaches the
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`basics of Sudarshan Kriya. Dhall Decl. ¶ 18. The fee for the Art of Living Course is typically
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`1 California’s anti-SLAPP statute provides a vehicle for dismissal of a “Strategic Lawsuit Against
`Public Participation,” that is, a lawsuit brought to chill protected expression.
`2 All parties have filed evidentiary objections to the declarations submitted in support of or in
`opposition to Defendants’ pending motions. To the extent the Court has considered evidence
`contained in the declarations, it has ruled on the objections to that evidence and noted its rulings in
`this Order. To the extent evidence contained in the declarations is not mentioned in this Order, it
`has not been considered by the Court, and no ruling on the objections is required.
`3 For clarity, the Court refers to the founding branch of the Art of Living Foundation, still based in
`Bangalore, India, as “AOLF-India.”
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`Case No.: 5:10-CV-05022-LHK
`ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART
`SECOND SPECIAL MOTION TO STRIKE
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`Case5:10-cv-05022-LHK Document162 Filed05/01/12 Page3 of 39
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`$250. Id. Plaintiff submits that the money raised through course subscriptions is used to maintain
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`its facilities, to train new teachers for its courses, and to provide humanitarian aid and community
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`service. Id. ¶ 19.
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`Plaintiff requires the specialized training of its teachers and has developed various written
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`materials for the proper instruction of its courses. Id. ¶¶ 21, 23-25. Plaintiff’s teaching processes
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`are contained in several written manuals, including: (1) the Training Guide Phase One Manual; (2)
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`the Phase One Supplement Manual; and (3) the Yes! Teacher Notes (collectively, the “Manuals”).
`Id. ¶¶ 24-28 & Exs. A-C.4 The current president of AOLF-US, Robert Fischman, along with other
`senior faculty at AOLF-US, co-authored the Manuals, which were created in coordination with
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`Shankar for the benefit of AOLF-US. Decl. of Michael Fischman in Opp’n to Defs.’ 2d Mot. to
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`Strike, ECF No. 117 (“Fischman MTS Decl.”) ¶ 4. Plaintiff has intentionally not memorialized the
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`teaching processes for Sudarshan Kriya in a formal manual, in an effort to prevent the unlawful
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`distribution of its Sudarshan Kriya teaching principles. Dhall Decl. ¶ 29; Fischman MTS Decl. ¶ 5.
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`However, Mr. Fischman and other AOLF-US senior faculty have drafted a set of Sudarshan Kriya
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`teaching notes (“Teaching Notes”), which are read to teachers-in-training. Fischman MTS Decl. ¶
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`5. As with the Manuals, the Teaching Notes were drafted in coordination with Shankar and for the
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`benefit of AOLF-US. Id. Teachers-in-training may take down written notes during oral
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`presentations on how to teach Sudarshan Kriya, but all AOLF-US teachers are required to keep
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`these notes strictly confidential. Dhall Decl. ¶¶ 30-33 & Ex. D. Plaintiff stores the Manuals and
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`Teaching Notes in electronic form on password protected computers and in password protected
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`files, and Plaintiff limits the disclosure of these computers and files to only limited persons who
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`must first agree to maintain the confidentiality of the information. See Dhall Decl. ¶¶ 34-36;
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`4 These are the three documents described in a declaration by Ashwani Dhall, the current Director
`and Chairman of the Board of AOLF-US. See Dhall Decl. ¶¶ 25, 55. However, the current
`President of AOLF-US, Michael Fischman, refers to Plaintiff’s teaching manuals as “(a) the Art of
`Living Part I Course Manual[;] (b) the Art of Living Course TTC One Manual[;] and (c) the Yes!
`Teacher Notes.” Decl. of Michael Fischman in Opp’n to Defs.’ 2d MTS, ECF No. 117 (“Fischman
`MTS Decl.”), ¶ 4. Both Dhall and Fischman appear to be referring to the same three documents.
`Because Plaintiff’s Opposition to the MTS adopts Dhall’s terminology, the Court does as well.
`See, e.g., Opp’n to MTS at 3.
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`Case No.: 5:10-CV-05022-LHK
`ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART
`SECOND SPECIAL MOTION TO STRIKE
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`Fischman MTS Decl. ¶¶ 6-7. In addition, Plaintiff requires students to sign a nondisclosure
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`agreement as a condition of participating in any AOLF-US course. Fischman MTS Decl. ¶ 7 & Ex.
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`A (AOLF course registration form). Plaintiff has used these nondisclosure agreements since the
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`Manuals and Teaching Notes were first published. Id. ¶ 7. Plaintiff also requires authorized third
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`parties who use the Manuals or Teaching Notes to maintain the same confidentiality procedures
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`used by Plaintiff. Id. ¶ 8.
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`In addition to Plaintiff’s fee-based courses, Plaintiff also offers an introductory course at no
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`charge called the “Breath Water Sound Course,” which explains some of Shankar’s basic
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`teachings, including basic breath exercises, sound relaxation methods, meditation techniques, tools
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`for healthy living, and processes to work together as a community. Dhall Decl. ¶¶ 39-41; Decl. of
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`Jaina Desai in Opp’n to Defs.’ MSJ, ECF No. 124 (“Desai Decl.”), ¶ 2; see also Request for
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`Judicial Notice, ECF No. 29 (“RJN”), ¶ 11 & Ex. K. Sometime prior to 2002, Shankar developed
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`the idea of memorializing the Breath Water Sound Course in a written manual. Desai Decl. ¶ 3;
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`Decl. of Robert Fischman in Opp’n to Defs.’ MSJ, ECF No. 123 (“Fischman MSJ Decl.”), ¶ 5.
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`Together with employees and volunteers of AOLF-India, AOLF-US, and other AOLF chapters
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`around the world, Shankar wrote the Breath Water Sound Manual (“BWSM”), which was
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`completed sometime in 2003, and is used to train teachers of the Breath Water Sound Course. See
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`Desai Decl. ¶ 4; Fischman MSJ Decl. ¶ 6; Dhall Decl. ¶ 42 & Ex. E (BWSM). Many students who
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`take the Breath Water Sound course subsequently enroll in one of Art of Living’s fee-based
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`courses. Dhall Decl. ¶ 41; Decl. of Natalie Kaharick in Opp’n to Defs.’ Mot. to Dismiss, ECF No.
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`43 (“Kaharick Decl.”), ¶¶ 9-10; Fischman MSJ Decl. ¶ 4.
`2. Defendants’ Blog Postings
`Defendants are Does, but have specially appeared through counsel under their blogger
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`names of “Skywalker” and “Klim.” Defendants are former adherents of the Art of Living
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`Foundation, but are now critical of both the Foundation and Shankar. See 2d Decl. of
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`Doe/Skywalker, ECF No. 101 (“2d Skywalker Decl.”), ¶¶ 14, 22-23; 2d Decl. of Doe/Klim, ECF
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`No. 102 (“2d Klim Decl.”), ¶ 2; Decl. of Jeffrey M. Rosenfeld in Opp’n to Defs.’ MSJ, ECF No.
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`Case No.: 5:10-CV-05022-LHK
`ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART
`SECOND SPECIAL MOTION TO STRIKE
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`122 (“Rosenfeld MSJ Decl.”), Ex. B [Skywalker’s Resp. to 1st Set of Interrogatories] at 5.
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`Skywalker, who is not a U.S. citizen, joined AOL in a country other than the United States, and is a
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`former AOLF teacher. 2d Skywalker Decl. ¶¶ 1, 14. Klim, also not a U.S. citizen, is also a former
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`AOLF teacher. 2d Klim Decl. ¶¶ 1-2.
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`Sometime around May 2009, Klim created the blog “Leaving the Art of Living” (“LAOL
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`Blog”), hosted on Google’s Blogger platform, located at <www.artoflivingfree.blogspot.com>.
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`Decl. of Doe/Klim, ECF No. 16 (“Klim Decl.”), ¶ 2. Sometime around May 2010, Skywalker
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`created the blog “Beyond the Art of Living” (“BAOL Blog”) on the Wordpress platform hosted by
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`Automattic, Inc., located at <aolfree.wordpress.com>. Dhall Decl. ¶ 44; 2d Skywalker Decl. ¶ 2.
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`The BAOL Blog is not a commercial website and does not carry advertisements or otherwise
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`generate revenue for Skywalker or others who post on the site. 2d Skywalker Decl. ¶ 2. The
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`Wordpress platform allows only Skywalker himself to edit or post articles directly, but allows
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`others to leave comments on the BAOL Blog. Id. ¶¶ 3-4. Some of the articles posted by
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`Skywalker are his own writing, but others are simply posted by Skywalker on behalf of third-party
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`authors. Id. ¶ 3.
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`The two blogs are critical of AOLF and its founder, Shankar, and were created to provide
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`former AOLF members and currently doubting ones “a space for healing.” Decl. of Jeffrey M.
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`Rosenfeld in Opp’n to 1st Mot. to Strike, ECF No. 39 (“Rosenfeld 1st MTS Decl.”), Exs. B
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`(“About” page of LAOL Blog) & C (“About” page of BAOL Blog”). The BAOL Blog explains
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`that “[t]he main purpose of both [Blogs] is to provide a critical perspective of both the Art of
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`Living organization and of Sri Sri Ravi Shankar.” Rosenfeld 1st MTS Decl. Ex. C (“Purpose of
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`These Blogs” page of BAOL Blog). Specifically, the Blogs contain the following accusations,
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`among others: (1) AOLF causes physical harm to participants, resulting from the harmful side
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`effects of certain meditation methods; (2) AOLF inflicts spiritual abuse on its members by “using
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`spirituality to manipulate people or to scare them, for instance by making them believe that if they
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`perform certain services for the organization that their karma will be reduced;” (3) AOLF markets
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`the Sudarshan Kriya technique as originating with and being unique to AOLF, but it may be just a
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`Case No.: 5:10-CV-05022-LHK
`ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART
`SECOND SPECIAL MOTION TO STRIKE
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`form of hyperventilation or an ancient yogic breathing technique already commonly known to
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`many yoga practitioners; (4) “the majority of techniques in [AOLF] have been plagiarized from
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`other organizations and sold to course participants as originating from [AOLF];” (5) AOLF and
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`Shankar embezzle the money that they claim goes to charitable projects around the world; (6)
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`AOLF “commercializ[es] a great many sacred Hindu practices and profit[s] heavily from this
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`venture;” (7) AOLF fabricates the statistics that it publishes about its course membership; and (8)
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`AOLF “is actually a cult masquerading as a humanitarian organization,” involving the deification
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`of Shankar. Rosenfeld 1st MTS Decl. Ex. C.
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`Beginning in June 2010, Skywalker began posting various AOLF materials on the BAOL
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`Blog. First, on June 1, 2010, Skywalker posted an entry titled “Sudarshan Kriya Download and
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`Notes,” which included the text of the Sudarshan Kriya Notes, as well as a hyperlink to a website
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`that, at the time, contained a download of the Sudarshan Kriya tape, i.e., the voice of Shankar
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`chanting the “So Ham” mantra. Decl. of Doe/Skywalker, ECF No. 15 (“Skywalker Decl.”) ¶ 9 &
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`Ex. B; 2d Skywalker Decl. ¶ 5. Next, on July 20, 2010, Skywalker posted the text of two more
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`documents: “Training Guide Phase 1,” and “Yes+ Teacher Notes.” Skywalker Decl. ¶ 9 & Exs. C
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`& D; 2d Skywalker Decl. ¶ 6. According to Skywalker, the Yes+ Teacher Notes that he posted is
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`not a manual prepared by AOLF but instead a collection of notes written by someone named
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`“Diego” documenting an AOLF teacher’s advice on how best to teach the Yes+ Course. 2d
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`Skywalker Decl. ¶ 6. Finally, on July 21, 2010, Skywalker posted the text of the BWSM.
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`Skywalker Decl. ¶ 9 & Ex. E; 2d Skywalker Decl. ¶ 6. According to data generated by Wordpress,
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`the webpage that contained the BWSM was viewed 147 times in July 2010, and 351 times in
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`August 2010, the only two months during which the BWSM was posted on the BAOL Blog.
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`Skywalker Decl. ¶ 12; 3d Decl. of Doe/Skywalker, ECF No. 137 (“3d Skywalker Decl.”), ¶ 5 &
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`Ex. D.
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`On August 25, 2010, the posting functionality of the BAOL Blog was disabled, and
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`Skywalker received a notice from Wordpress that it had received a takedown notice pursuant to the
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`Digital Millennium Copyright Act (“DMCA takedown notice”). Skywalker Decl. ¶ 10 & Ex. F.
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`Case No.: 5:10-CV-05022-LHK
`ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART
`SECOND SPECIAL MOTION TO STRIKE
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`The DMCA takedown notice was on Art of Living letterhead but was sent from an entity called
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`Vyakti Vikas Kendra India (“VVK India”), “a registered charitable trust founded by His Holiness
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`Sri Sri Ravishankar” with a main office in Karnataka, India. See Skywalker Decl. ¶ 10 & Ex. F.
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`The takedown notice refers to an instruction manual known as the “Sudarshan Kriya Notes,” in
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`which VVK India claims exclusive copyright. Id. After receiving this takedown notice, due to
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`lack of resources to consult counsel or challenge the assertion of copyright, Skywalker deleted the
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`text of the Training Guide Phase 1, Yes+ Teacher Notes, and the BWSM from his blog on August
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`27, 2010. See Skywalker Decl. ¶ 10; 3d Skywalker Decl. ¶ 2 & Ex. A. Skywalker has not reposted
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`the BWSM or any other AOLF materials. Skywalker Decl. ¶ 10; 3d Skywalker Decl. ¶ 2.
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`Plaintiff did not discover that the BWSM had been posted on Skywalker’s BAOL Blog
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`until late August 2010. Dhall Decl. ¶ 62. By then, Skywalker had already removed the BWSM
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`from his Blog, before Plaintiff was able to serve a takedown notice. See id.
`3. Plaintiff’s Allegations
`Plaintiff alleges that Defendants committed copyright infringement by publishing the
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`BWSM on the BAOL Blog. Plaintiff also alleges that its teaching Manuals and Teaching Notes for
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`“Sudarshan Kriya” contain trade secrets, and that Defendants misappropriated these trade secrets
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`by publishing the confidential Manuals and Teaching Notes on their blogs. Plaintiff alleges that
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`their course enrollment and revenue have dropped since the Manuals, Teaching Notes, and BWSM
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`were disclosed on Defendants’ Blogs. Dhall Decl. ¶¶ 68-69 & Ex. F.
`B. Procedural History
`Plaintiff filed its original complaint in federal court on November 5, 2010, alleging
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`defamation, misappropriation of trade secrets, copyright infringement, and trade libel stemming
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`from the postings on Defendants’ blogs. See ECF No. 1 (“Compl.”). Because the postings were
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`made pseudonymously, Plaintiff also sought leave to take expedited discovery for the purpose of
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`identifying and serving process on Defendants. See ECF No. 5. After the Magistrate Judge
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`granted Plaintiff’s request, see ECF No. 10, Plaintiff served subpoenas on Google, Inc. (“Google”)
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`Case No.: 5:10-CV-05022-LHK
`ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART
`SECOND SPECIAL MOTION TO STRIKE
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`and Automattic, Inc. (“Automattic”), the owners of the companies that host Defendants’ blogs,
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`seeking identifying information about Defendants. See ECF No. 99 at 2.
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`On January 31, 2011 – before Google or Automattic had responded to the subpoenas –
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`Defendants Skywalker and Klim, specially appearing through counsel, filed three motions: (1)
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`motion to dismiss for lack of personal jurisdiction, and for failure to state a claim with respect to
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`Plaintiff’s defamation and trade libel claims, see ECF No. 11; (2) special motion to strike
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`Plaintiff’s defamation, trade libel, and trade secret claims pursuant to Cal. Civ. Proc. Code §
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`425.16, i.e., California’s “anti-SLAPP statute,” see ECF No. 12; and (3) motion to quash or modify
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`the order allowing discovery, see ECF No. 13. Skywalker admitted that he (but not Klim) had
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`published the BWSM and alleged trade secret materials on his blog as part of a larger campaign to
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`“debunk the notion that Ravi Shankar is an enlightened being in possession of mystical ‘secret
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`knowledge.’” ECF No. 12 at 2; see Skywalker Decl. ¶ 9. Skywalker also indicated that the
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`materials had been removed shortly after being posted in response to a DMCA takedown notice.
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`See ECF No. 15 ¶¶ 9-10.
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`The Court issued a ruling on the motion to dismiss and motion to strike on June 15, 2011.
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`The Court denied Defendants’ FRCP 12(b)(2) motion to dismiss for lack of personal jurisdiction,
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`but determined that the alleged defamatory and libelous statements on Defendants’ blogs were
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`“constitutionally protected opinions,” and on that basis granted Defendants’ motion to dismiss the
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`defamation and trade libel claims. Order Granting Motion to Dismiss and Denying Motion to
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`Strike, June 15, 2011, ECF No. 83 (“Merits Order”) at 6, 9-10. Having granted the motion to
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`dismiss with leave to amend, the Court did not reach the merits of Defendants’ motion to strike the
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`defamation and trade libel claims. See id. at 13, 14. Although the Court granted Plaintiff leave to
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`amend its defamation and trade libel claims, Plaintiff has not done so. See generally FAC. The
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`Court denied without prejudice Defendants’ motion to strike the trade secrets claim, but stayed any
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`discovery as to that cause of action because Plaintiff had failed to identify with particularity the
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`“genuinely secret aspects of its teaching lessons and manuals.” Merits Order at 19.
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`Case No.: 5:10-CV-05022-LHK
`ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART
`SECOND SPECIAL MOTION TO STRIKE
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`8
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`For the Northern District of California
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`United States District Court
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`Defendants’ motion to quash the order allowing discovery, see ECF No. 13, was granted as
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`to Klim but denied as to Skywalker on August 10, 2011, by the Magistrate Judge in this matter.
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`Defendants filed a motion for relief from the Magistrate Judge’s nondispositive pre-trial order,
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`which this Court granted on November 9, 2011. See Order Granting Motion for Relief From
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`Nondispositive Pre-Trial Order Re: Motion to Quash, Nov. 9, 2011, ECF No. 129 (“Discovery
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`Order”). Upon determining that the balance of harms weighed in favor of preserving Defendants’
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`anonymity at this stage of the proceedings, the Court stayed all discovery related to Skywalker’s
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`identity pending resolution of Defendants’ second special motion to strike and for summary
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`judgment, which are now before the Court. See id. at 13-16.
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`Pursuant to the Court’s Merits Order, Plaintiff served an Amended Trade Secret Disclosure
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`(“ATSD”) on Defendants on July 7. See Decl. of Koltun Decl. ISO MTS, ECF No. 136 (“Koltun
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`MTS Decl.”), Ex. 1; Opp’n to MTS at 6. On July 14, 2012, Plaintiff filed a First Amended
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`Complaint alleging only claims for copyright infringement under 17 U.S.C. § 501 et seq., and
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`misappropriation of trade secrets under California Civil Code § 3436 et seq., against all Doe
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`Defendants operating as or with anonymous Defendant Skywalker. See FAC at 10-11. Defendants
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`subsequently filed the pending motion for summary judgment on the copyright claim and second
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`special motion to strike the trade secret claim.
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`Although Skywalker and Klim have remained anonymous, the parties have exchanged
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`initial disclosures. See ECF No. 99. Plaintiff also served interrogatories and requests for
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`production on Skywalker through counsel. See id. At oral argument, Defendants’ counsel
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`indicated that Skywalker has produced documents and responded to interrogatories where they do
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`not apply solely to the trade secrets claim, for which discovery is stayed because Plaintiff has not
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`identified its trade secrets with sufficient particularity.
`II. MOTION FOR SUMMARY JUDGMENT ON COPYRIGHT CLAIM
`Defendants move for summary judgment on Plaintiff’s copyright claim, asserting: (1)
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`Plaintiff does not own the copyright in the BWSM; (2) Skywalker’s posting of the BWSM was
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`protected “fair use”; (3) Plaintiff cannot show entitlement to any money damages; and (4) Plaintiff
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`Case No.: 5:10-CV-05022-LHK
`ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART
`SECOND SPECIAL MOTION TO STRIKE
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`9
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`For the Northern District of California
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`United States District Court
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`Case5:10-cv-05022-LHK Document162 Filed05/01/12 Page10 of 39
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`has misued its alleged copyright for the improper purpose of chilling Defendants’ free speech on an
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`issue of public interest.
`A. Legal Standard
`Summary judgment is proper when the pleadings, discovery, and affidavits demonstrate
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`there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a
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`matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
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`Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc.,
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`477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence
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`for a reasonable trier of fact to decide in favor of the nonmoving party. Id.
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`In ruling on a motion for summary judgment, the Court may consider only admissible
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`evidence. See Fed. R. Civ. P. 56(c)(2); Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002).5
`The Court must view the evidence in the light most favorable to the nonmoving party and draw all
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`justifiable inferences in its favor. Anderson, 477 U.S. at 255. “Credibility determinations, the
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`weighing of the evidence, and the drawing of legitimate inferences from the facts are jury
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`functions, not those of a judge. . . ruling on a motion for summary judgment.” Id.; accord House v.
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`Bell, 547 U.S. 518, 559-60 (2006). However, conclusory, speculative testimony in affidavits and
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`moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.
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`Thornhill Publ’g Co., Inc. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 738 (9th Cir. 1979).
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`The moving party bears the initial burden of identifying those portions of the pleadings,
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`discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex
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`Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue at trial,
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`it must affirmatively demonstrate that no reasonable trier of fact could find other than for the
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`moving party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). However,
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`where the nonmoving party will have the burden of proof at trial on a particular issue, the moving
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`party need only point out “that there is an absence of evidence to support the nonmoving party’s
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`5 “We do not mean that the nonmoving party must produce evidence in a form that would be
`admissible at trial in order to avoid summary judgment. Obviously, Rule 56 does not require the
`nonmoving party to depose her own witnesses.” Celotex Corp., 477 U.S. at 324.
`10
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`Case No.: 5:10-CV-05022-LHK
`ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART
`SECOND SPECIAL MOTION TO STRIKE
`
`For the Northern District of California
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`United States District Court
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`Case5:10-cv-05022-LHK Document162 Filed05/01/12 Page11 of 39
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`case.” Celotex Corp., 477 U.S. at 325. Provided there has been adequate time for discovery,
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`summary judgment should be entered against a party who fails to make a showing sufficient to
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`establish the existence of an element essential to that party’s case, and on which that party will bear
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`the burden of proof at trial. Id. at 322-23. “[A] complete failure of proof concerning an essential
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`element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323.
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`Once the moving party has met its initial burden, the burden shifts to the nonmoving party
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`to set forth, by affidavit or as otherwise provided in Rule 56, “specific facts showing that there is a
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`genuine issue for trial.” Anderson, 477 U.S. at 250 (internal quotation marks omitted). To carry
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`this burden, the nonmoving party may not simply rely on the pleadings and must do more than
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`make “conclusory allegations [in] an affidavit.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888
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`(1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
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`(explaining that the nonmoving party must “do more than simply show that there is some
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`metaphysical doubt as to the material facts”). The nonmoving party has the burden of identifying
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`in its opposition papers, with reasonable particularity, the evidence that precludes summary
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`judgment. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). It is not the Court’s responsibility
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`“to scour the record in search of a genuine issue of triable fact.” Id.; see also Carmen v. S.F.
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`Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001) (holding that “the district court may limit
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`its review to the documents submitted for the purposes of summary judgment and those parts of the
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`record specifically referenced therein”). If the nonmoving party “fails to make a showing
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`sufficient to establish the existence of an element essential to that party’s case, and on which that
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`party will bear the burden of proof at trial, . . . the moving party is entitled to judgment as a matter
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`of law.” Celotex Corp., 477 U.S. at 322-23 (internal quotation marks omitted).
`B. Prima Facie Case
`The Copyright Act, 17 U.S.C. § 106, protects the owner of a copyright by granting him or
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`her, inter alia, exclusive rights to “reproduce, distribute, and publicly display copies of the work.”
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`Kelly v. Arriba Soft Corp., 336 F.3d 811, 817 (9th Cir. 2003); see 17 U.S.C. § 106. To establish a
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`prima facie case of copyright infringement, a plaintiff must show (1) “ownership of a valid
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`Case No.: 5:10-CV-05022-LHK
`ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART
`SECOND SPECIAL MOTION TO STRIKE
`
`11
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`For the Northern District of California
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`United States District Court
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`Case5:10-cv-05022-LHK Document162 Filed05/01/12 Page12 of 39
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`copyright,” and (2) “violation by the alleged infringer of at least one of the exclusive rights granted
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`to copyright owners by the Copyright Act.” UMG Recordings, Inc. v. Augusto, 628 F.3d 1175,
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`1178 (9th Cir. 2011); see 17 U.S.C. § 501(a).
`1. Infringing Act
`Plaintiff has presented no evidence that Klim reproduced, distributed, or publicly displayed
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`copies of the BWSM. Thus, Klim is entitled to summary judgment on the issue of
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`noninfringement, and Defendant s’ motion for summary judgment is therefore GRANTED as to
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`Klim on that basis. However, Skywalker admits that he posted the text of the BWSM on his
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`BAOL Blog on July 21, 2010, and therefore Skywalker is not entitled to summary judgment on the
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`same basis as Klim. See 2d Skywalker Decl. ¶ 6. The Court therefore considers whether Plaintiff
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`has carried its burden of proving copyright ownership in the BWSM.
`2. Copyright Ownership
`Plaintiff bears the burden of proving copyright ownership, which is always a threshold
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`question in copyright infringement actions. See Fleischer Studios, Inc. v. A.V.E.L.A., Inc., 654
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`F.3d 958, 962 (9th Cir. 2011) (citing Litchfield v. Spielberg, 736 F.2d 1352, 1355 (9th Cir. 1984));
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`Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1144 (9th Cir. 2003). To prove
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`ownership, Plaintiff must establish either that it authored the asserted work, or tha