No. 19' 1244
`
`
`IN THE
`
`$unreme mart at the Witch fitutes
`
`ANTHONY JOHNSON,
`
`V.
`
`Appbbam‘,
`
`STORIX, INC.,
`
`Respan den t.
`
`On Application to Stay the Mandate of the
`
`United States Court of Appeals for the Ninth Circuit
`
`
`
`APPLICATION FOR A STAY PENDING THE DISPOSITION OF A
`
`PETITION FOR A WRIT OF CERTIORARI
`
`
`
`Anthony Johnson
`Pro Se Petitioner
`
`1728 Griffith Avenue
`
`Las Vegas, NV 89104
`(619) 246-6549
`
`
`
`
`
`
`IN THE
`
`$unreme mart at the Witch fitutes
`
`ANTHONY JOHNSON,
`
`V.
`
`Appbbam‘,
`
`STORIX, INC.,
`
`Respan den t.
`
`On Application to Stay the Mandate of the
`
`United States Court of Appeals for the Ninth Circuit
`
`
`
`APPLICATION FOR A STAY PENDING THE DISPOSITION OF A
`
`PETITION FOR A WRIT OF CERTIORARI
`
`
`
`Anthony Johnson
`Pro Se Petitioner
`
`1728 Griffith Avenue
`
`Las Vegas, NV 89104
`(619) 246-6549
`
`
`
`
`
`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES ...................................................................................... ii
`
`ATTACHMENTS ...................................................................................................... iii
`
`I.
`
`STATEMENT OF FACTS)................................................................................ 3
`
`II. REASONS FOR GRANTING THE STAY ........................................................ 7
`
`A. There Is a Reasonable Probability This Court Will Grant Certiorari and
`Reverse the Judgment Below ............................................................................ 7
`
`1.
`
`Johnson Raises an Important Constitutional Issues Warranting the
`
`Court’s Review ............................................................................................. 7
`
`2. There is a Fair Prospect the Court Will Reverse the Judgment ............. 10
`
`B. Enforcement of the Mandate Will Inflict Irreparable Injury......................... 1 1
`
`III. CONCLUSION ................................................................................................. 12
`
`PROOF OF SERVICE ............................................................................................ 13
`
`APPENDIX ....................................................................................................... . ......... 1
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`Bazn'entos V. Wells Fargo Bank, NA, 633 F.3d 1186 (9th Cir. 2011) ....................... 9
`
`Entm’t Research G111, Inc. V. Genesis Creative Grp., Inc., 122 F.3d 1211 (9th Cir.
`
`1997) .............................................................................................................................. 8
`
`GarauX v. Pulley, 739 F.2d 437 (9th Cir. 1984) ........................................................... 8
`
`Hollz'nsworth v. Perry, 558 US. 183 (2010) ................................................................. 7
`
`Johnson V. STORIX, INC, 9th Cir. Case No. 16-55439 .............................................. 4
`
`Johnson V. STORIX INC, 9th Cir. Case No. 18-56106 .......................................... 3, 5
`
`Kjrtsaeng V. John W1'ley&Sons, Inc. (Kirtsaeng), 136 S. Ct. 1979,
`
`579 U.S. _, 195 L. 256. Ed. 2d 368 (2016) ........................................................ 2, 4, 11
`
`Lawrence V. Dep’t ofInten'or, 525 F.3d 916 (9th Cir. 2008) ....................................... 9
`
`Pullman Standard V. Swjnt, 456 US. 273 (1982) ....................................................... 9
`
`United States V. Mateo-Mendez, 215 F.3d 1039 (9th Cir. 2000) ................................. 9
`
`Statutes
`
`17 U.S.C. § 505 .......................................................................................................... 2, 6
`
`28 U.S.C. § 2101(1) ........................................................................................................ 1
`
`Rules
`
`Fed. R. App. Proc. 36 .................................................................................................... 9
`
`Ninth Circuit Local Rule 36- 1 ...................................................................................... 9
`
`Supreme Court Rules 23 & 24...................................................................................... 1
`
`
`
`ATTACHMENTS
`
`Attachment A1 Memorandum of the Ninth Circuit Court of Appeals in Johnson V.
`Johnson V. STORIX, INC, No. 16-55439 (9th Cir. Dec. 19, 2017)
`(cert. denied.) (Pet. App. 45a)
`
`Attachment B;
`
`Memorandum of the Ninth Circuit Court of Appeals in Johnson V.
`STORIX, INC, No. 18-56106 (9th Cir. Feb. 5, 2020) (Pet 1a)
`
`Attachment C;
`
`Order of the District Court for the Southern District of California in
`
`Johnson V. STORIX, INC, No. 3114-cv-1873-H-BLM, dated August
`7, 2018. (Pet. App. 5a; Exhibit B omitted)
`
`Attachment D2
`
`Second amended judgment of the District Court for the Southern
`District of California in Johnson V. STORIX INC, No. 3214-cv-
`1873-H-BLM, dated August 7, 2018. (Pet. App. 42a)
`
`Attachment E1
`
`Order of the Ninth Circuit denying a motion to stay the mandate
`pending filing and disposition of petition for writ of certiorari with
`the Supreme Court, dated April 29, 2020.
`
`
`
`To the HONORABLE ELENA KAGAN. Associate Justice of the Supreme Court of
`
`the United States and Circuit Justice for the Ninth Circuit
`
`In accordance with 28 U.S.C. § 2101(0 and Supreme Court Rules 23 & 24,
`
`Plaintiff-Applicant Anthony Johnson (Johnson) respectfully requests an immediate
`
`stay of execution of the judgment in Southern District of California Case No. 3114-
`
`cv-01873-H-BLM pending the disposition of a petition for writ of certiorari with this
`
`Court. Earlier today, the Ninth Circuit summarily denied Johnson’s motion to stay
`
`its mandate pending the filing of Johnson’s petition and Johnson’s amended motion
`
`to stay the mandate pending the disposition of the petition after it was filed. Absent
`
`relief from this Court, the mandate is scheduled to issue in seven days. Petitioner
`
`has herein satisfied the requirements of Supreme Court Rule 23 for seeking a stay
`
`from a Circuit Justice.
`
`First, there is a reasonable probability the Court will grant Johnson’s petition
`
`for certiorari. Ordinarily, an unpublished 2-page memorandum affirming a
`
`judgment against a pro se appellant would weigh against certiorari. But in this
`
`case, those factors strongly favor the Court granting certiorari. Johnson will ask the
`
`Court to answer an important constitutional question of whether the Ninth Circuit
`
`denied his Fifth Amendment right to due process by summarily affirming a district
`
`court’ order, wherein the district court repeatedly failed to acknowledge any legal
`
`arguments or authority contrary to its decision to award unprecedented attorney’s
`
`fees in a copyright case. The Ninth Circuit panel also affirmed the order following
`
`remand without determining if the district court complied with its mandate to
`
`
`
`reduce the prior fee award to a reasonable amount based on the facts and
`
`circumstances of the case in accordance this Court’s decision in [firtsaeng V. John
`
`Wiley & Sons, Inc. (KY1‘tsaeng9, 136 S. Ct. 1979, 579 U.S. _, 195 L. 256. Ed. 2d 368
`
`(2016).
`
`Second, Johnson has demonstrated a fair prospect the order of the district
`
`court awarding attorney’s fee in this case will be reversed. Even after being
`
`remanded as unreasonable and excessive, the attorney’s fee award against Johnson
`
`remains by far the largest against any individual in a copyright case in US. history,
`
`the only fees awarded against an author of a registered copyright, and the only
`
`award against any party with an objectively reasonable case since the Court’s
`
`decision in Kirtsaeng supra. Importantly, the entire basis and calculation of the
`
`award was based on Johnson having sent an email while the copyright case was
`
`pending threatening litigation against Storix’s management on unrelated matters
`
`and asserting his rights under the Copyright Act. Never have copyright attorney’s
`
`fees been used to punish a litigant for exercising his valid First Amendment rights
`
`to petition and free speech.
`
`Lastly, neither party will suffer any harm if the Ninth Circuit’s mandate is
`
`stayed because the amended judgment following remand awarding attorney’s fees
`
`and costs under the Copyright Act § 505 in the amount of $419,192.64 is currently
`
`secured by a supersedeas bond in the amount of $427,932.83 to cover the entire
`
`award plus three years of post-judgment interest. However, if the mandate issues,
`
`Johnson’s supersedeas bond will be released to Defendant-Respondent Storix, Inc.
`
`
`
`and Johnson will have very little hope of recovering the funds if the judgment is
`
`reversed 0r remanded. Johnson respectfully and urgently requests that this Court
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`stay the Ninth Circuit’s mandate before May 7, 2020 when it is scheduled to be
`
`released.
`
`I.
`
`STATEMENT OF FACTS
`
`In December 2015, the district court entered judgment based on a jury’s
`
`verdict
`
`that Johnson implicitly transferred ownership of his 1999 registered
`
`copyrights to Storix when he incorporated the company in 2003. (See Johnson V.
`
`STORIX INC, 9th Cir. Case No. 18-56106, ROA No. 2 at p. 3.)1 The court further
`
`found Johnson was a “work for hire” during the eight years in which he was the
`
`Storix’s sole shareholder, officer and director, and thus Storix also owned all his
`
`derivative works. (Id. at p. 10, citing Johnson V. STORIX INC, No. 3314-cv-1873-H-
`
`BLM (“Dist Ct”) Doc. No. 160.)
`
`The district court deferred its decision to award attorney’s fees until after
`
`this Court’s ruling in Kirtsaeng, supra. In August 2016, the court found that an
`
`email in which Johnson threatened a state lawsuit against Storix’s management on
`
`unrelated matters and asserted his rights under the Copyright Act while the
`
`litigation was pending was “inappropriate conduct [that] should be deterred.”
`
`(Attachment C, Exhibit A at p. 11.) The court thereby ordered Johnson to pay all
`
`Storix’s fees incurred after the date of his email. (Id, Exhibit B at p. 9.) The first
`
`The Register of Actions in 9th Cir. Case No. 18-56106 will hereafter be referred
`1
`to as “ROA”.
`
`
`
`amended judgment awarded Storix attorney’s fees and costs in the amount of
`
`$555,119. (Dist. Ct. Doc. Nos. 230 & 246.)
`
`The court granted in part Johnson’s motion to stay execution of the judgment
`
`pending appeal upon posting of a supersedeas bond for the full judgment amount.
`
`(Dist. Ct. Doc. No. 256.) Johnson sold his home to pay the bond and was thereafter
`
`unable to afford an attorney to represent him in both the appeal and concurrent
`
`state litigation Storix brought against him based on the same email. (Dist. Ct. Doc.
`
`No. 288 at pp. 16-19; Doc. No. 2 at pp. 23-25.) Johnson was therefore pro se in filing
`
`his reply brief and has since been self-represented in these proceedings.
`
`In Johnson V. STORIX: INC, 9th Cir. Case No. 16-55439 (“Johnson 1"),
`
`Johnson argued that Storix possessed no written transfer agreement required by
`
`the Copyright Act and that the “work for hire” doctrine does not apply to a sole
`
`owner of a company. (Johnson 1, Doc. No. 25.) Johnson further appealed the
`
`attorney’s fee award because his case was objectively reasonable and not frivolous,
`
`the court’s award of fees was based on erroneous conclusions about the Copyright
`
`Act’s need for deterrence contrary to the guidance in Mrtsaeng, supra, 136 S. Ct. at
`
`1987. The Ninth Circuit panel affirmed the district court’s denial of Johnson’s
`
`summary judgment and new trial motions without addressing the above legal
`
`issues. The panel also didn’t consider whether an attorney’s fee award can be based
`
`on conduct unrelated to the litigation, but nonetheless reversed the attorney’s fee
`
`award as unreasonable, and remanded the decision to the district court with
`
`
`
`instructions to reconsider the amount based on all facts and circumstances of the
`
`case in accordance with [firtsaengz supra. (Attachment A at p. 8.)
`
`On remand, Johnson argued clear errors of fact and law in the basis and
`
`calculation of the prior fee award, including that the fees were entirely based on
`
`protected conduct unrelated to the copyright litigation. (Dist. Ct. Doc. Nos. 288 &
`
`311.) The court reduced the fees to $419,192.64 to comply with the directive to
`
`reduce the fees, but the order made no reference to any of Johnson’s arguments, and
`
`the award was still based entirely on the same protected conduct. (See Attachment
`
`C.) The Second Amended Judgment awarded total fees and costs of $427,932.83 and
`
`added interest from the date of the original judgment. (Attachment D.) The court
`
`further ordered Johnson to post a second bond for the new judgment amount
`
`pending appeal before it would release the bond from the reversed judgment. (Dist.
`
`Ct. Doc. No. 313.)
`
`In Johnson V. STORIX, INC, 9th Cir. Case No. 18-56106 (“Johnson II”),
`
`Johnson raised the issues of (1) whether the attorney fee award can be based on
`
`issues unrelated to the copyright litigation and having no effect on its attorney’s
`
`fees, (2) Whether the district court erred in deciding an amount of fees sufficient to
`
`deter Johnson from exercising his First Amendment rights to free speech and
`
`petition on unrelated matters, and (3) whether the district court failed to consider
`
`the reasonableness of the amount remanded for reconsideration based on the facts
`
`and circumstance of the case. (ROA No. 2 at pp. 1-2.) Johnson explicitly stated in
`
`his briefs that his arguments were not directed to the district court’s decision to
`
`
`
`award fees but to the legal and factual basis and calculation of the award amount.
`
`He therefore concluded that, although the facts and controlling law dictate that no
`
`fees should have been awarded, the procedural history dictates that a nominal fee
`
`award is warranted. (ROA No. 2 at pp. 23, 35; BOA No. 10 at p. 4.)
`
`The Ninth Circuit panel afiirmed the district court’s order in a 2-page
`
`memorandum stating, “Given the scope of this court’s remand order, we conclude
`
`the district court did not err in holding that it was not required to reexamine its
`
`original decision to award attomeys’ fees to Storix under the Copyright Act, 17
`
`U.S.C. § 505” (Attachment B; italics added.) The panel therefore affirmed the entire
`
`fee award “because this court affirmed the district court’s decision to award fees and
`
`remanded only as to the amount awarded” without reference to any facts or
`
`arguments in Johnson’s briefs specifically directed to the award amount. (Id) The
`
`panel’s only finding on an argument Johnson raised on appeal was that the district
`
`court did not abuse its discretion in adding interest to the judgment. (Id)
`
`Johnson filed a petition for panel rehearing, arguing that the panel failed to
`
`address any of his arguments directed to the award amount. (Johnson II, Doc. No.
`
`16.) The petition was summarily denied. (Johnson II, Doc. No. 16.) The next day,
`
`Johnson timey filed a motion to stay the mandate with the Ninth Circuit pending
`
`filing of a petition for writ of certiorari with this Court. (Johnson II, Doc No. 19.)
`
`After Johnson filed the Petition with this Court, he filed an amended motion with
`
`the Ninth Circuit to stay the mandate pending disposition of the petition. (Johnson
`
`II, Doc. No 22.) Both motions were denied on April 29, 2020. (Attachment E.)
`
`
`
`II.
`
`REASONS FOR GRANTING THE STAY
`
`“To obtain a stay pending the filing and disposition of a petition for a writ of
`
`certiorari, an applicant must show (1) a reasonable probability that four Justices
`
`will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect
`
`that a majority of the Court will vote to reverse the judgment below; and (3) a
`
`likelihood that irreparable harm will result from the denial of a stay.” Hollinswortb
`
`V. P612317, 558 US. 183, 190 (2010). These standards are readily satisfied in this case.
`
`A. There Is a Reasonable Probability This Court Will Grant Certiorari and
`
`Reverse the Judgment Below
`
`1.
`
`Johnson Raises an Important Constitutional Questions Warranting the
`Court’s Review
`
`The most compelling reason for granting Johnson’s petition for Certiorari is
`
`found in Supreme Court Rule 10(a), which indicates certiorari is warranted when “a
`
`United States court of appeals has entered a decision
`
`so far departed from the
`
`accepted and usual course of judicial proceedings, or sanctioned such a departure by
`
`a lower court, as to call for an exercise of this Court's supervisory power.” Johnson
`
`presents an important question of whether refusal by both the district and appellate
`
`courts to address dispositive legal arguments constitutes a denial of his Fifth
`
`Amendment right to due process. That denial of due process was amplified by the
`
`Ninth Circuit’s failure to determine if the district court complied with its mandate
`
`on remand to reduce the attorneys’ fees to a reasonable amount in accordance with
`
`[firtsaengz supra. Resolving the question of denial of Fifth Amendment rights will
`
`result in this Court either remanding the decision to the Ninth Circuit for further
`
`consideration or reversing the underlying district court judgment based on its clear
`
`
`
`violation of Johnson’s First Amendment rights by explicitly awarding attorney’s fees
`
`to punish him for
`
`threatening litigation and asserting his rights under the
`
`Copyright Act.
`
`The Ninth Circuit panel upheld the second judgment without addressing
`
`Johnson’s arguments by instead finding that Johnson was challenging the district
`
`court’s decision to award fees rather than the amount of fees remanded for
`
`reconsideration. This is nonsensical since an unlawful decision to use attorney’s fees
`
`to chill a litigant’s First Amendment rights is certainly relevant to the amount of
`
`fees awarded. Nonetheless, Johnson explicitly stated in his brief (supported by
`
`reference to the transcript of the remand hearing) that his arguments were not
`
`directed to the decision to award fees but to the unreasonableness of the amount.
`
`Even so, the panel’s refusal to consider Johnson’s arguments was contrary to the
`
`Ninth Circuit’s own directive to liberally construe the pleadings of a pro se litigant.
`
`See Garaux V. Pulley, 739 F.2d 437, 439 (9th Cir. 1984). Furthermore, the panel
`
`affirmed the order following remand without determining if the district court
`
`complied with its mandate in Johnson Ito reduce the fees to a reasonable amount —
`
`a determination that could not be reached without addressing Johnson’s legal and
`
`factual arguments.
`
`The Ninth Circuit was required to review de novo any issues of law and
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`mixed questions of fact and law,
`
`including any legal analysis pertaining to
`
`attorneys’ fees. Entm’t Research Gm, Inc. V. Genesis Creative G111, Inc., 122 F.3d
`
`1211, 1216 (9th Cir. 1997); United States V. Mateo-Mendez, 215 F.3d 1039, 1042
`
`
`
`(9th Cir. 2000); Pullman-Standard V. Swmt, 456 US. 273, 289 n.19 (1982). The
`
`Ninth Circuit avoided reviewing a clearly erroneous decision by asserting a
`
`factually incorrect
`
`reason, unsupported by the record,
`
`to simply ignore all
`
`arguments raised on appeal, thereby deferring to the district court’s findings which
`
`should have been reviewed as if no decision had previously been rendered. See
`
`Bam‘emos V. Wells Fargo Bank, NA, 633 F.3d 1186, 1188 (9th Cir. 2011);
`
`Lawrence V. Dep’t ofIntez'ior, 525 F.3d 916, 920 (9th Cir. 2008). In this case, the
`
`Ninth Circuit deferred to the entire order and its written decision contained no
`
`findings on any legal issues raised on appeal.
`
`The Court should determine the minimal level of reasoning required to
`
`prevent appellate courts from dismissing meritorious appeals by simply ignoring
`
`legal issues and arguments the lower court also refused to acknowledge. Fed. R.
`
`App. Proc. 36 allows appellate courts to issue a decision “without an opinion”, but
`
`the Ninth Circuit Local Rule 36- 1 requires a “reasoned disposition.” While summary
`
`opinions may be considered an implied agreement with the lower court’s decision, it
`
`cannot be inferred from such opinions that a circuit court agreed with the lower
`
`court on important issues and arguments that do not appear in the lower court’s
`
`order. A litigant, especially when acting pro se, has been denied due process when
`
`he took every possible step to raise and argue an important legal issue only to have
`
`it entirely ignored by both the district and appellate courts required by their own
`
`rules to provide a reasoned disposition.
`
`
`
`Such unfair procedural tactics used to support erroneous judgments not only
`
`deprives a party due process but prevents further review because this Court cannot
`
`find written orders containing no reference to the underlying issues and arguments
`
`precedential or in conflict with other decisions. Requiring appellate courts to
`
`provide a single sentence indicating the reason for its decision on each legal
`
`argument — even to simply acknowledge that it deferred to or agreed with the lower
`
`court’s decision — will better ensure parties are afforded a fair hearing, reduce the
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`number of petitions for rehearing and certiorari, and aid in restoring the public’s
`
`eroding trust in the legal system.
`
`Even if the Court declines to require minimal reasoning in written decisions,
`
`it should nonetheless reverse the Ninth Circuit’s decision in order to provide
`
`guiding precedent that: (1) Circuit courts cannot summarily affirm a judgment in
`
`which the lower court failed to address the same legal arguments raised on appeal,
`
`and (2) Circuit courts cannot affirm an order
`
`following a remand without
`
`determining if the lower court complied with its mandate.
`
`2.
`
`There is a Fair Prospect the Court Will Reverse the Judgment
`
`The district court ignored all facts, argument and authority that should have
`
`precluded the attorney fee award. Even so, Johnson specifically asked the district
`
`court on remand to award only a nominal amount to comply with the Ninth
`
`Circuit’s mandate to reduce the fees to a reasonable amount.
`
`Johnson argued on remand and on appeal that the district court specifically
`
`awarded fees to punish Johnson for (1) exercising his First Amendment rights to
`
`10
`
`
`
`free speech and petition on unrelated matters and (2) for asserting his rights under
`
`the Copyright Act before the court decided he implicitly transferred all copyrights to
`
`Storix twelve years earlier. The court expressed no reason for awarding attorney’s
`
`fees related to the copyright litigation, finding that nearly $420,000 in fees were
`
`necessary to deter Johnson from threatening litigation and to punish him for
`
`exercising his rights under the Copyright Act while the copyright litigation was
`
`pending. Every decision of the district court was unprecedented, based its sua
`
`sponte arguments and factual conclusions unsupported by the record, and contrary
`
`to the essential goals of the Copyright Act. See Ifirtsaeng supra, 136 S. Ct. 1979;
`
`Fogerév V. Fantasy. 1110., 510 US. 517, 114 S. Ct. 1023 (1994).
`
`B.
`
`Enforcement of the Mandate Will Inflict Irreparable Injury
`
`It should be of relatively little importance to Storix that Johnson’s bond be
`
`released pending a decision of this Court on Johnson’s petition. But Storix’s
`
`persistent mismanagement and waste of corporate resources throughout five years
`
`of needless litigation against Johnson in both state and federal courts have
`
`rendered the company insolvent. If Johnson’s bond is released to Storix, it will be
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`spent long before this Court can decide Johnson’s petition and Johnson will have no
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`hope of recovering the funds even if the decision in this case is reversed or
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`remanded.
`
`There is good cause to stay the Ninth Circuit’s mandate and no harm to any
`
`party by allowing the fee award to remain in the existing supersedeas bond pending
`
`the disposition of Johnson’s petition for writ of certiorari with this Court.
`
`11
`
`
`
`III.
`
`CONCLUSION
`
`Based on the foregoing, the Court should order the Ninth Circuit to stay its
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`mandate pending the filing and disposition of Johnson’s petition for writ of
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`certiorari.
`
`Dated: April 29, 2020
`
`Respectfully Submitted,
`
`s/Anthony; Johnson
`
`Anthony Johnson
`
`Pro Se Petitioner
`
`1728 Griffith Avenue
`
`Las Vegas, NV 89104
`
`(619) 246-6549
`
`12
`
`
`
`PROOF OF SERVICE
`
`I, Anthony Johnson, do swear 0r declare that on this date, April 29, 2020, as
`
`required by Supreme Court Rule 29, I have served the enclosed APPLICATION
`
`FOR STAY OF MANDATE on each party to the above proceeding or that party’s
`
`counsel, and on every other person required to be served, by depositing an envelope
`
`containing the above documents in the United States mail properly addressed to
`
`each of them and with first-class postage prepaid, or by delivery to a third-party
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`commercial carrier for delivery within 3 calendar days.
`
`The names and addresses of the attorneys for Appellee Storix, Inc. served are
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`as follows:
`
`Kendra J. Hall
`
`Paul A. Tyrell
`Sean Sullivan
`
`PROCOPIO, CORY, HARGREAVES & SAVITCH LLP
`525 B Street, Suite 2200
`San Diego, CA 92101
`Telephone: 619.238.1900
`
`I declare under penalty of perjury that the foregoing is true and correct.
`
`Executed on April 29, 2020.
`
`[Sign
`
`e)
`
`13
`
`
`
`INDEX OF APPENDICES
`
`
`Document
`
`
`
`A
`
`
`
`
`
`Memorandum of the Ninth Circuit Court of Appeals in
`Johnson V. Johnson V. STORIX, INC, No. 16-55439 (9th
`
`Cir. Dec. 19, 2017) (cert. denied.)
`A9
`Memorandum of the Ninth Circuit Court of Appeals in
`(Pet. 1a)
`Johnson V. STORIX, INC, No. 18-56106 (9th Cir. Feb. 5,
`
`2020)
`
`Order of the District Court for the Southern District of
`
`A1
`
`(Pet. 45a)
`
`A12
`
`(Pet 5a)
`
`A42
`(Pet. 42a)
`
`A45
`
`
`
`
`
`
`
`
`
`C
`
`D
`
`
`
`
`
`
`
`
`
`California in Johnson V. STORIX INC, No. 3314-CV'
`
`
`187 3-H-BLM, dated August 7, 2018. (Exhibit B omitted)
`
`Second amended judgment of the District Court for the
`
`Southern District of California in Johnson V. STORIX
`
`INC, No. 3214-cv-1873-H-BLM, dated August 7, 2018.
`Order of the Ninth Circuit denying a motion to stay the
`mandate pending filing and disposition of petition for
`writ of certiorari with the Supreme Court, dated April
`29, 2020.
`
`
`
`
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`Case: 16-55439, 12/19/2017, ID: 10695248, DktEntry: 69-1, Page 1 0f 8
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`NO
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`T F R PUBLICATIO
`0
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`N
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`FILED
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`DEC 19 2017
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`UNITED STATES COURT OF APPEALS
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`MEIELEgUFEJ1yE¥EARP'PCE:kE§K
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`FOR THE NINTH CIRCUIT
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`ANTHONY J. JOHNSON,
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`Plaintiff—counter-
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`defendant—Appellant,
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`V.
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`STORIX, INC., a California Corporation,
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`Defendant-counter-claimant-
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`Appellee.
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`
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`No.
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`16-55439
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`DC. No.
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`3: l4-cv—01 873—H-BLM
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`MEMORANDUM“
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`Appeal from the United States District Court
`for the Southern District of California
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`Marilyn L. Huff, District Judge, Presiding
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`Submitted December 5, 2017”
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`Pasadena, California
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`Before: D.W. NELSON and REINHARDT, Circuit Judges, and STEEH,”
`District Judge.
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`*
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`This disposition is not appropriate for publication and is not precedent
`except as provided by Ninth Circuit Rule 36-3.
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`The panel unanimously concludes this case is suitable for decision
`M
`without oral argument. See Fed. R. App. P. 34(a)(2).
`***
`
`The Honorable George Caram Steeh III, United States District Judge
`for the Eastern District of Michigan, sitting by designation.
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`Page A1
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`
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`Case: 16-55439. 12/19/2017, ID: 10695248, DktEntry: 69-1, Page 2 0f 8
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`Anthony Johnson (“Johnson”) appeals the judgment in favor of Storix, Inc.
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`(“Storix”) after a 5—day jury trial in his copyright infringement action, denial of his
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`summary judgment motion, denial of his motion for a new trial, and award of
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`attorney’s fees to Storix. We review a denial of summary judgment de novo.
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`Perfect 10, Inc. v. CCBill L.L.C., 488 F.3d 1102, 1109 (9th Cir. 2007). For a
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`summary judgment ruling to be appealable after a full trial on the merits, the denial
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`must involve an “error of law that, if not made, would have required the district
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`court to grant the motion.” FBT Productions, LLC v. Aftermath Records, 621 F.3d
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`958, 963 (9th Cir. 2010). In reviewing a denial of a motion for a new trial, we
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`review interpretations of the Copyright Act de novo. See Perfect 10, Inc, 488 F.3d
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`at 1109. We review jury instructions de novo for statements of law and under an
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`abuse of discretion standard with respect to their formulation. SE1U v. Nat ’1 Union
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`ofHealthcare Workers, 718 F.3d 1036, 1047 (9th Cir. 2013). We also “review a
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`district court’s decision to grant or deny attorney’s fees under the Copyright Act
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`for abuse of discretion.” Perfect 10, Inc, 488 F .3d at 1109. We AFFIRM in part,
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`REVERSE in part, and REMAND.
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`On March 15, 2004, Johnson signed a 2003 Annual Report (“Annual
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`Report”) he personally drafted that memorialized the transfer of “all assets” to
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`Page A2
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`Case: 16-55439, 12/19/2017. ID: 10695248, DktEntry: 69-1, Page 3 of 8
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`Storix. The Annual Report stated: “All assets from Storix Software were
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`transferred to Storix Inc., as of its incorporation as of February 24, 2003.”
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`Johnson argues that the district court erred in denying his motion for
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`summary judgment and motion for a new trial because the Annual Report does not
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`satisfy Section 204(a) of the COpyright Act as a matter of law. The Copyright Act
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`provides that “a transfer of copyright ownership, other than by operation of law, is
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`not valid unless an instrument of conveyance, or a note or memorandum of the
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`transfer is in writing and signed by the owner of the rights conveyed.” 17 U.S.C. §
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`204(a). Section 204(a) can be satisfied by an oral assignment that is later
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`confirmed in writing. Jules Jordan Video, Inc. v. 144942 Canada Inc, 617 F.3d
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`1146, 1156 (9th Cir. 2010); Valente—Kritzer Video v. Pinckney, 881 F.2d 772, 775
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`(9th Cir. 1989) (“If an oral transfer of a copyright license is later confirmed in
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`writing, the transfer is valid”).
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`The writing does not require any “magic words .
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`.
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`. Rather, the parties’
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`intent as evidenced by the writing must demonstrate a transfer of the copyright.”
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`Radio Television Espanola S.A. v. New World Entm ’t, Ltd, 183 F.3d 922, 927 (9th
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`Cir. 1999) (citing Melville B. Nimmer & David Nimmer, Nimmer on Copyright, §
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`10.03[A][2] at 10-37 [“As with all matters of contract law, the essence of the
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`inquiry here is to effectuate the intent of the parties.”]). As such, the writing does
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`Page A3
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`Case: 16-55439. 12/19/2017, ID: 10695248. DktEntry: 69-1, Page 4 Of 8
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`not “have to be the Magna Carta; a one-line pro forma statement will do.” Id.
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`(citations omitted); see also SCO Grp., Inc. v. Novell, Inc, 578 F.3d 1201, 1212
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`(10th Cir. 2009) (“Section 204(a), by its terms, imposes only the requirement that a
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`copyright transfer be in writing and signed by the parties from whom the copyright
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`is transferred; it does not on its face impose any heightened burden of clarity or
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`particularity”).
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`The Annual Report qualified as a “note or memorandum” that was signed by
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`Johnson and memorialized a transfer of assets. See 18 U.S.C. § 204(a). Contrary
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`to Johnson’s assertions, the form of a signature and contemporaneity of the writing
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`are not dispositive. First, Section 204(a) does not necessitate the form of the
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`signature to be in the transferor’s personal capacity. The purpose of Section
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`204(a)’s writing requirement is to prevent inadvertent transfers and fraudulent
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`claims of copyright ownership. Magnuson v. Video Yesteryear, 85 F.3d 1424,
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`1428—29 (9th Cir. 1996). That concern is Virtually absent when Johnson himself
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`admitted to writing and signing the Annual Report that memorialized a transfer of
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`at least some assets to his own wholly—owned company. Johnson conceded that a
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`transfer of some assets did occur, including computers, desks, supplies, and
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`“whatever was necessary to continue doing business as Storix, the same thing that I
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`was doing as Storix Software.”
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`Page A4
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`Case: 16-55439. 12/19/2017, ID: 10695248, DktEntry: 69-1, Page 5 of 8
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`Similarly, Konigsberg Intern. Inc. v. Rice, 16 F.3d 355 (9th Cir. 1994) does
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`not require a contemporaneous writing under these facts. Magnuson, 85 F.3d at
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`1429 n.1 (stating that the issue in Konigsberg was tardiness, not
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`contemporaneousness, and “to the extent that some language in Konigsberg might
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`be interpreted as requiring a contemporaneous writing even under the facts of this
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`case, it is clearly dicta”); see also BarefootArchitect, Inc. v. Bunge, 632 F.3d 822,
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`828 (3d Cir. 2011) (“[T]ext of the statute .
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`.
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`. clearly allows for a subsequent
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`writing to effectuate an earlier oral transfer, it does not specify a time period during
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`which the writing must be consummated”). Unlike the writing in Konigsberg, the
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`Annual Report provided a “reference point” to the exact date of the transfer. See
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`id. (noting that the problem in Konigsberg was that “it was ‘not the type ofwriting
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`contemplated by [S]ection 204’” because it did not provide a “reference point for
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`the parties’ [] disputes”).
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`Johnson also argues that his motion for a new trial should have been granted
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`because the interpretation of Section 204(a) was not an issue for the jury. But for
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`Johnson’s assertion that the term “all assets” did not include the copyright to SBA,
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`the Annual Report satisfied Section 204(a)’s writing requirement. Both parties
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`offered extrinsic evidence to prove the meaning of “all assets.” See 2 Patry on
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`Copyright § 5:111 (“After—the—fact writings should serve .
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`.
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`. as a reference point, a
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`Page A5
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`Case: 16—55439, 12/19/2017." ID: 10695248, DktEntry: 69-1, Page 6 of 8
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`springboard from whence the parties’ actual intent may be verified .
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