Case: 21-15787, 02/28/2022, ID: 12382565, DktEntry: 30, Page 1 of 38
`
`No. 21-15787
`__________________________________________________________________
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`
`
`
`Harrison Snow Kinsley,
`
`
`
`v.
`
`Udemy, Inc.
`
`
`Plaintiff-Appellant,
`
`Defendant-Appellee.
`
`
`On Appeal from the United States District Court
`for the Northern District of California
`No. 3:19-cv-04334-JSC
`Hon. Magistrate Judge Jacqueline Scott Corley
`
`
`APPELLANT HARRISON SNOW KINSLEY’S OPENING BRIEF
`
`
`
`Steven Howard Kuhn, Esq.
`The Law Firm of Steven H. Kuhn
`1954 Mountain Blvd #13052
`Oakland CA 94611-2813
`(415)937-7358
`steven@kuhn-lawfirm.com
`
`
`
`
`
`No. 21-15787
`__________________________________________________________________
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`
`
`
`Harrison Snow Kinsley,
`
`
`
`v.
`
`Udemy, Inc.
`
`
`Plaintiff-Appellant,
`
`Defendant-Appellee.
`
`
`On Appeal from the United States District Court
`for the Northern District of California
`No. 3:19-cv-04334-JSC
`Hon. Magistrate Judge Jacqueline Scott Corley
`
`
`APPELLANT HARRISON SNOW KINSLEY’S OPENING BRIEF
`
`
`
`Steven Howard Kuhn, Esq.
`The Law Firm of Steven H. Kuhn
`1954 Mountain Blvd #13052
`Oakland CA 94611-2813
`(415)937-7358
`steven@kuhn-lawfirm.com
`
`
`
`
`
`Case: 21-15787, 02/28/2022, ID: 12382565, DktEntry: 30, Page 2 of 38
`
`
`
`TABLE OF CONTENTS
`
`
`
`JURISDICTIONAL STATEMENT ......................................................................... 1
`
`Page
`
`INTRODUCTION .................................................................................................... 1
`
`ISSUES PRESENTED ............................................................................................. 2
`
`STATEMENT OF THE CASE ................................................................................. 3
`
`SUMMARY OF THE ARGUMENT ....................................................................... 5
`
`PROCEDURAL POSTURE ..................................................................................... 6
`
`STANDARD OF REVIEW .................................................................................... 10
`
`ARGUMENT .......................................................................................................... 10
`
`I.
`
`A.
`
`B.
`
`UDEMY'S RESPONSE WAS NOT EXPEDITIOUS IN ITS
`REMOVAL OF EITHER OF KINSLEY COURSES. ....................... 12
`
`THE DISTRICT COURT OVERLOOKED IRREFUTABLE
`DOCUMENTARY EVIDENCE IN ITS DOCKET WHICH
`SHOWED THAT UDEMY’S RESPONSE REGARDING
`MASTERY PYTHON 3 BASICS TUTORIAL SERIES + SQLITE
`WITH PYTHON WAS NOT EXPEDITIOUS. UDEMY IS
`THEREFORE NOT ENTITLED TO THE SAFE HARBOR
`PROVISION OF 35 U.S.C 512(C). ................................................... 13
`
`THE DOCUMENTS SWEPT UP IN THE AMBIT OF UDEMY'S
`MASS, INDISCRIMINATE, AND ROUTINIZED
`CONFIDENTIALITY DESIGNATION SHOW THAT UDEMY
`HAD RED FLAG KNOWLEDGE OF COPYRIGHT
`INFRINGEMENT OF OPENCV WITH PYTHON FOR IMAGE
`AND VIDEO ANALYSIS – HANDS ON! AND DID NOTHING
`ABOUT IT UNTIL KINSLEY HIMSELF SUBMITTED A DMCA
`TAKEDOWN 36 DAYS LATER. ..................................................... 15
`
`
`
`ii
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`
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`II.
`
`UDEMY IS GENERALLY NOT ENTITLED TO THE SAFE
`HARBOR PROVISION OF 35 U.S.C. §512 BECAUSE IT IS NOT A
`SERVICE PROVIDER UNDER THE MEANING OF 17 U.S.C. §
`512 (K)(1). .......................................................................................... 16
`
`III. UDEMY IS NOT ENTITLED TO THE SAFE HARBOR
`PROVISION OF 35 U.S.C. 512 (C). ................................................. 19
`
`A. UDEMY DOES NOT SATISFY THE REQUIREMENTS OF 35
`U.S.C. § 512 (C)(1)(A). ...................................................................... 20
`
`B.
`
`C.
`
`UDEMY DOES NOT SATISFY THE REQUIREMENTS OF 35
`U.S.C. § 512 (C)(1)(B). ...................................................................... 21
`
`UDEMY DOES NOT SATISFY THE REQUIREMENTS OF 35
`U.S.C. § 512 (C)(1)(C). ...................................................................... 22
`
`IV. UDEMY REMAINS LIABLE FOR CONTRIBUTORY AND
`VICARIOUS COPYRIGHT INFRINGEMENT BECAUSE IT IS
`NOT ENTITLED TO THE SAFE HARBOR OF 35 U.S.C. 512(C). 23
`
`V.
`
`THE DISTRICT COURT ABUSED ITS DISCRETION IN
`DENYING PLAINTIFF'S MOTION FOR MISCELLANEOUS
`RELIEF BECAUSE THE EFFECT WAS TO SHIFT THE BURDEN
`TO KINSLEY TO EXPLAIN WHY THE DOCUMENTS UDEMY
`PRODUCED SHOULD NOT BE CONFIDENTIAL. UDEMY HAS
`THE BURDEN TO EXPLAIN WHY ITS DOCUMENT
`PRODUCTION SHOULD BE CONSIDERED AS CONFIDENTIAL.
` ............................................................................................................ 23
`
`VI. THE DISTRICT COURT ABUSED ITS DISCRETION BY
`CONCLUDING THAT ORAL ARGUMENT WAS NOT
`NECESSARY WHEN QUESTIONS POSITED IN THE ORDER
`COULD HAVE BEEN ANSWERED AT ORAL ARGUMENT. .... 25
`
`VII. PLAINTIFF'S OTHER CLAIMS ARE NOT PREEMPTED BY HIS
`COPYRIGHT CLAIMS. .................................................................... 27
`
`CONCLUSION ....................................................................................................... 29
`
`STATEMENT OF RELATED CASES…………………………………………...14
`
`
`
`iii
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`
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`
`CERTIFICATE OF COMPLIANCE…………………………………………...…15
`
`CERTIFICATE OF SERVICE……………………………………………………16
`
`
`
`iv
`
`
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`Adobe Sys. Inc. v. Christenson, 809 F.3d 1071 ....................................................... 13
`Anderson v. Liberty Lobby, Inc., 477 U.S. 242 ....................................................... 11
`Celotex Corp. v. Catrett, 477 U.S. 317 ................................................................... 12
`Del Campo v. Am. Corrective Counseling Servs., Inc. ........................................... 26
`Del Madera Properties v. Rhodes & Gardner, Inc., 820 F.2d 973 ........................ 29
`Flexible Lifeline Sys. v. Precision Lift, Inc., 654 F.3d 989 ..................................... 16
`Fogerty v. Fantasy, Inc., 510 U.S. 517 ................................................................... 29
`Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129 ................................................. 29
`Kodadek v. MTV Networks, Inc., 152 F.3d 1209 .................................................... 28
`Laws v. Sony Music Ent., Inc., 448 F.3d 1134 ........................................................ 28
`Mahon v. Credit Bureau of Placer County, Inc., 171 F.3d 1197 ............................ 26
`Miller v. Comm’r, 310 F.3d 640 ............................................................................. 11
`Thrifty Oil Co. v. Bank of America Nat. Trust, 322 F.3d 1039 ............................... 11
`United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539 ...................... 12
`
`
`Statutes
`28 U.S. Code § 1331 ................................................................................................. 7
`28 U.S. Code § 636(c) ........................................................................................... 2, 6
`
`
`Rules
`FRAP 4(a)(1)(A) ............................................................................................. 2
`FRCP 12(b)(6) ...................................................................................... 3, 6, 10
`
`
`
`v
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`
`
`JURISDICTIONAL STATEMENT
`
`The District Court had jurisdiction over the federal questions in this case
`
`based on 28 U.S.C. § 1331, and supplemental jurisdiction over the state law claims
`
`based on 28 U.S.C. § 1337 (a). The District Court also had jurisdiction based on
`
`diversity of citizenship under 28 U.S.C. § 1332(a)(1). Plaintiff-Appellant Harrison
`
`Snow Kinsley is a citizen of the State of Alabama. Defendant-Appellee Udemy,
`
`Inc. is a citizen of the State of California with its principal place of business in
`
`California. The amount in controversy exceeds $75,000. The decision appealed
`
`from is a final judgment on all claims. This Court has jurisdiction under 28 U.S.C.
`
`§ 1291. The Decision below appears in the Record at Excerpt of Record 151.
`
`INTRODUCTION
`
`This case stems from Udemy's sale of two of Plaintiff Harrison Snow
`
`Kinsley's copyrighted courses, Mastery Python 3 Basics Tutorial Series + SQLite
`
`with Python (“Mastery Python 3”) and OpenCV with Python for Image and Video
`
`Analysis – Hands On! (“OpenCV”).
`
`Kinsley believes that Udemy was behind the uploading of his copyrighted
`
`courses, as alleged in his complaint. "26. Defendant Udemy was either the source
`
`of the uploads or expended an insufficient amount of effort to verify the course
`
`uploader's identity." (ER-11) Udemy exercised control by selecting the material
`
`
`
`
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`which was offered for sale on its website. (ER-145) Kinsley alleged that Udemy
`
`received direct financial benefit from the infringing activity. (ER-5)
`
`The documents which were produced by Udemy and hidden from the
`
`District Court show that Udemy had actual and specific knowledge of Kinsley's
`
`material and failed to act.
`
`Udemy withheld these documents until January 14, 2021. (ER-47) This
`
`surprise eleventh-hour production, coupled with Udemy's mass, indiscriminate, and
`
`routinized designation of confidentiality under the applicable protective order
`
`created a tremendous burden on Plaintiff and forced him to oppose Udemy's
`
`Motion for Summary Judgment by way of declaration attesting to the contents of
`
`Udemy's document production rather than submitting the documents as exhibits.
`
`Kinsley has made a motion to supplement the appellate record and requests
`
`the opportunity to supplement this brief with additional argument based on
`
`documents which should have been part of the District Court's record but were not.
`
`This case should be reversed and remanded with instructions to open
`
`discovery so that Kinsley can inquire into the surprise document production
`
`proffered 11 days prior to the deadline for dispositive motions.
`
`ISSUES PRESENTED
`
`1. Whether the District Court erred by finding as a matter of law that
`
`Udemy took down Kinsley's copyrighted material "expeditiously" in light of
`
`
`
`2
`
`
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`evidence that was submitted to the District Court that showed that Plaintiff's
`
`copyrighted material was available for viewing on Udemy's website for at least
`
`seven hundred ninety-nine (799) days.
`
`2. Whether the District Court erred by not changing the briefing schedule to
`
`allow Kinsley to deal with Udemy's surprise document production 11 days prior to
`
`the deadline for dispositive motions.
`
`3. Whether the District Court properly shifted the burden of disputing the
`
`confidentiality of Udemy's document production to Kinsley.
`
`4. Whether the District Court abused its discretion by vacating the hearing
`
`on Udemy's motion for summary judgment when the District Court posited
`
`questions of Kinsley which were easily answered in its order on Summary
`
`Judgment.
`
`5. Whether the District Court abused its discretion by not modifying the
`
`briefing schedule in light of Udemy's eleventh-hour document production which
`
`contained documents fatal to Udemy's case.
`
`STATEMENT OF THE CASE
`
`Udemy, Inc. ("Udemy") touts itself as an online teaching and marketplace
`
`with over 183000 courses and 40 million students. It creates no content of its own,
`
`instead relying on others to create content and post it to its website, Udemy.com.
`
`
`
`3
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`It owes its success to the efforts of others and its dubious ability to evade
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`laws and regulations which were not designed to apply to a website structured like
`
`Udemy.com.
`
`In particular, Udemy relies on the Digital Millennium Copyright Act
`
`("DMCA") to absolve itself of liability for its actions. Udemy claims safe-harbor
`
`immunity under 35 U.S.C 512 (c) even though content posted to its website is not
`
`done solely at the direction of the user and Udemy receives direct financial gain
`
`every time it sells a course. Udemy manually approves each and every course
`
`before it is offered for sale on its website. When selling a course, Udemy does not
`
`permit a user to view the course unless and until the user has provided a direct
`
`monetary gain to Udemy. These two facts independently remove Udemy's status
`
`as a "service provider" under the DMCA.
`
`In the present instance, Udemy had contacted Kinsley and asked him to be
`
`an instructor on its website. When Kinsley declined, his courses appeared on
`
`Udemy's website anyway. Udemy's own employees detected issues with Kinsley's
`
`course but allowed the course to remain up for sale. Udemy was notified by third
`
`parties that Kinsley's material was illegally offered for sale on Udemy's website.
`
`Udemy still did nothing. It was only until Kinsley himself submitted a DMCA
`
`takedown that Udemy removed one of his courses for new sales only. Based on
`
`the language of Udemy's own website, Udemy continued to allow users to "access"
`
`
`
`4
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`Kinsley's copyrighted material well after the filing of this lawsuit. It was only until
`
`May 18, 2020 when Udemy changed the language of its website to imply that it
`
`was no longer allowing users who had purchased Kinsley's courses to "access"
`
`them. It is unknown whether Udemy actually removed Kinsley's courses from its
`
`website or if Udemy continues to allow users to view his copyrighted material.
`
`SUMMARY OF THE ARGUMENT
`
`This is an appeal from the March 31, 2021 decision of the District Court that
`
`misinterpreted the purpose of the DMCA as an act to primarily protect internet
`
`service providers. It is undeniable, however, that Congress was trying to protect
`
`the interests of copyright holders while recognizing, and seeking to limit, the
`
`potential burdens that internet service providers might be subjected to by the need
`
`to enforce protection of copyrighted materials.
`
`In its attempt to expand protections for websites like Udemy in a way not
`
`contemplated by Congress, the District Court overlooked evidence indicating that
`
`Udemy is not a service provider and that its response with regard to Plaintiff's
`
`copyrighted material was not expeditious.
`
`The District Court’s additional holding with respect to direct, contributory
`
`and vicarious infringement, and its holding with regard to the internet service
`
`provider immunity from state law causes of action are all contrary to binding
`
`precedent of this Court.
`
`
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`5
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`PROCEDURAL POSTURE
`
`
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`This case was filed on July 29, 2019. Discovery was initially hampered by
`
`Udemy's unwillingness to agree to the Northern District's Standard Protective
`
`Order. When that was finally worked out, the COVID-19 pandemic came about in
`
`January 2020 and Udemy took full advantage of the state of emergency to delay
`
`and evade responding to discovery.
`
`Discovery in the District Court.
`
`Kinsley propounded his initial set of discovery on November 21, 2019. An
`
`extension for time to respond was granted until January 8, 2020. (ER-52) On
`
`January 20, 2020, Kinsley received Udemy's responses to request for production of
`
`documents, responses to requests for admissions, and responses to interrogatories.
`
`(ER-52)
`
`On February 4, 2020, the District Court signed a Stipulated Protective Order
`
`between the parties that, among other things, gave Defendant Udemy, Inc. the
`
`ability to designate documents and information as "confidential." (ER-52) Udemy
`
`delayed in returning the Northern District's standard protective order for a full 83
`
`days after it was provided with a signature from Plaintiff's counsel. (ER-52)
`
`The court held an informal discovery conference on Thursday, March 12,
`
`2020, and ordered further meet and confer by the parties. (ER-52)
`
`
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`6
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`A letter was sent on March 16, 2020, outlining the problems with the
`
`discovery to counsel for Defendant, Jeff Landis, Esq., and Alexei Klestoff, Esq.
`
`(ER-52)
`
`Counsel for Plaintiff attempted to resolve the discovery issues by meeting
`
`and conferring with counsel for Udemy. (ER-52) Counsel for Plaintiff withdrew
`
`the discovery requests which the District Court indicated were overbroad.
`
`Defendant did not make any concession and did not provide any additional
`
`information concerning the lack of documents, lack of privilege log, excessive
`
`objections, dates concerning the privilege log, or any other issue. (ER-52)
`
`Counsel for Kinsley complained that routine, publicly available, and even blank
`
`documents are contained in Udemy's discovery response and were marked
`
`confidential. (ER-52) Counsel for Kinsley represented that defendant was not
`
`substantially justified in making such a sweeping designation. (ER-52)
`
`In July 2020, the parties met and conferred again on two separate occasions.
`
`Plaintiff Kinsley was present for these meet and confer sessions. No concessions
`
`were offered by Udemy. (ER-52)
`
`Counsel for Plaintiff met and conferred with counsel for Udemy one final
`
`time on January 11, 2021 to discuss the documents and outstanding discovery
`
`issues and upcoming motions. (ER-52)
`
`
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`7
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`At no time during this phone conversation did counsel for Udemy indicate
`
`that there would be an additional and upcoming document production on January
`
`14, 2021. (ER-52)
`
`Udemy's Rolling Document Production.
`
`Udemy unilaterally decided that it would "roll out" its document production
`
`in unknown phases and refused to provide a start or end date despite repeated
`
`requests. (ER-53)
`
`On January 29, 2020, Udemy provided the first tranche of its "rolling
`
`document" production. This production contained bates stamped documents #1-
`
`47. No privilege log was provided. Each and every document produced was
`
`designated as confidential under the relevant protective order. (ER-53)
`
`On February 7, 2020, Udemy provided the second tranche of its "rolling
`
`document" production. This production contained bates stamped documents #48-
`
`50. No privilege log was provided. Each and every document produced was
`
`designated as confidential under the relevant protective order. (ER-53)
`
`On February 19, 2020, Udemy provided the third tranche of its "rolling
`
`document" production. This production contained bates stamped documents #51-
`
`183. No privilege log was provided although this production contained a plethora
`
`of redactions. Each and every document produced was designated as confidential
`
`under the relevant protective order. (ER-53)
`
`
`
`8
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`On March 12, 2020, Udemy provided the fourth tranche of its "rolling
`
`document" production. This production contained bates stamped documents #184-
`
`216. No privilege log was provided. Each and every document produced was
`
`designated as confidential under the relevant protective order. (ER-53)
`
`On April 14, 2020, Udemy provided the fifth tranche of its "rolling
`
`document" production. This production contained bates stamped documents #217-
`
`307. No privilege log was provided. On information and belief, this is the ONLY
`
`production containing even a single document which was not designated as
`
`confidential. Those documents are: 286, 287-289, and 290-291. (ER-53)
`
`On August 11, 2020, Udemy provided the sixth and "final" tranche of its
`
`"rolling document" production. This production contained bates stamped
`
`documents #308-361. No privilege log was provided. Each and every document
`
`produced was designated as confidential under the relevant protective order. (ER-
`
`53)
`
`On August 30, 2020, Udemy provided the seventh and supplemental tranche
`
`of its "rolling document" production. This production contained bates stamped
`
`documents #362-441. No privilege log was provided concerning this tranche. Each
`
`and every document produced was designated as confidential under the relevant
`
`protective order. (ER-54)
`
`
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`9
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`On January 14, 2021, Udemy provided an eighth surprise tranche of its
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`"rolling document" production. This production contained bates stamped
`
`documents #442-524. Each and every document produced was designated as
`
`confidential under the relevant protective order. (ER-54)
`
`Udemy is the "designating party" of all documents marked "confidential"
`
`under Civil L.R. 79-5(e). Udemy was unwilling to withdraw its confidential
`
`designation on even a single document. Udemy designated virtually all of its
`
`document production which contains facts relevant to the claims asserted in the
`
`complaint. (ER-54)
`
`Udemy moved for Summary Judgment on January 25, 2021. (ER-172)
`
`Udemy's motion was granted on March 31, 2021. Kinsley filed his appeal on April
`
`29, 2021. (ER-174)
`
`STANDARD OF REVIEW
`
`The standard of review of the District Court's granting of Udemy's motion
`
`for summary judgment is de novo. See Thrifty Oil Co. v. Bank of America Nat.
`
`Trust, 322 F.3d 1039, 1046 (9th Cir. 2003) (bankruptcy court); Miller v. Comm’r,
`
`310 F.3d 640, 642 (9th Cir. 2002) (tax court).
`
`
`
`ARGUMENT
`
`Under Federal Rule of Civil Procedure 56(a), “the court shall grant summary
`
`judgment if the movant shows that there is no genuine dispute as to any material
`10
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`fact and the movant is entitled to judgment as a matter of law.” Material facts are
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`those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc.,
`
`477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if the
`
`evidence is such that “a reasonable jury could return a verdict for the nonmoving
`
`party.” See id. “[I]n ruling on a motion for summary judgment, the judge must
`
`view the evidence presented through the prism of the substantive evidentiary
`
`burden.” Id. at 254. The question is “whether a jury could reasonably find either
`
`that the [moving party] proved his case by the quality and quantity of evidence
`
`required by the governing law or that he did not.” Id. “[A]ll justifiable inferences
`
`must be drawn in [the nonmovant’s] favor.” See United Steelworkers of Am. v.
`
`Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (en banc) (citing Liberty
`
`Lobby, 477 U.S. at 255).
`
`The moving party bears the initial responsibility for informing the district
`
`court of the basis for its motion and identifying those portions of the pleadings,
`
`depositions, interrogatory answers, admissions and affidavits, if any, that it
`
`contends demonstrate the absence of a genuine issue of material fact. See Celotex
`
`Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party opposing a properly supported
`
`motion for summary judgment “may not rest upon the mere allegations or denials
`
`of [that] party’s pleading, but . . . must set forth specific facts showing that there is
`
`a genuine issue for trial.” See Fed. R. Civ. P. 56(e); see also Liberty Lobby, 477
`
`
`
`11
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`U.S. at 250. The opposing party need not show the issue will be resolved
`
`conclusively in its favor. See Liberty Lobby, 477 U.S. at 248– 49. All that is
`
`necessary is submission of sufficient evidence to create a material factual dispute,
`
`thereby requiring a jury or judge to resolve the parties’ differing versions at trial.
`
`See id.
`
`Triable issues of material fact exist at least as to whether 1) Udemy removed
`
`Kinsley's Python 3 Mastery course expeditiously, 2) Udemy removed Kinsley's
`
`OpenCV case expeditiously, and 3) whether Udemy is entitled to the safe harbor
`
`provisions of 35 U.S.C. §512.
`
`I.
`
`UDEMY'S RESPONSE WAS NOT EXPEDITIOUS IN ITS
`REMOVAL OF EITHER OF KINSLEY COURSES.
`
`Udemy did not remove either of Kinsley's courses in an expeditious manner.
`
`Although Udemy offered no evidence showing that Kinsley's copyrighted material
`
`was actually removed from its website, the Court improperly imposed upon
`
`Kinsley the burden of proving that Udemy had not removed the courses
`
`expeditiously.
`
`The DMCA is an affirmative defense. Adobe Sys. Inc. v. Christenson, 809
`
`F.3d 1071, 1079 (9th Cir. 2015). Udemy must prove that it actually removed
`
`Kinsley's courses from its servers. Udemy still has not provided any competent
`
`evidence indicating that it actually deleted Kinsley's copyrighted material. The
`
`evidence that is available shows that Udemy did not actually take down any of
`
`
`
`12
`
`
`
`Case: 21-15787, 02/28/2022, ID: 12382565, DktEntry: 30, Page 18 of 38
`
`Kinsley's courses in an expeditious manner. Publicly available documents that
`
`were submitted to the District Court indicate that the courses were still accessible
`
`as of March 22, 2018. (ER-60)
`
`
`
`A. THE DISTRICT COURT OVERLOOKED IRREFUTABLE
`DOCUMENTARY EVIDENCE IN ITS DOCKET WHICH
`SHOWED THAT UDEMY’S RESPONSE REGARDING
`MASTERY PYTHON 3 BASICS TUTORIAL SERIES + SQLITE
`WITH PYTHON WAS NOT EXPEDITIOUS. UDEMY IS
`THEREFORE NOT ENTITLED TO THE SAFE HARBOR
`PROVISION OF 35 U.S.C 512(C).
`
`Mastery Python 3 was apparently uploaded to Udemy on January 5, 2018.
`
`(ER-149) Kinsley submitted a DMCA takedown for this course on January13,
`
`2018. Udemy claims that the course material was "removed" on January 16, 2018.
`
`Udemy's own website belies these statements. The current state of the
`
`evidence shows that Udemy was still allowing users who had purchased Kinsley's
`
`course to access it seven hundred and ninety-nine (799) days after Kinsley
`
`submitted his original DMCA takedown notice. Plaintiff captured the web page
`
`from Udemy's website for his Mastery Python 3 course on March 22, 2020. The
`
`captured page provides as follows:
`
`"The course: Mastery Python 3 Basics Tutorial Series + SQLite
`with python is no longer available to purchase on the Udemy
`platform. We apologize for any inconvenience. If you have already
`purchased this course, please log in to your Udemy account to
`access it." [bold emphasis added]
`(ER-60)
`
`
`
`13
`
`
`
`Case: 21-15787, 02/28/2022, ID: 12382565, DktEntry: 30, Page 19 of 38
`
`After counsel for Udemy was informed that Udemy was still permitting
`
`users to access Kinsley's courses, Udemy quickly covered its tracks by changing
`
`the web page. A copy of the new webpage at the same universal resource locator,
`
`as captured on May 18, 2020, shows that the webpage was changed to state:
`
`"Sorry, Course ID 1496650 is no longer available. If you purchased it and
`have not received a refund, please contact our support team."
`(ER-62, ER-64)
`
`
`Defendant Udemy's own website indicated that Udemy was still permitting
`
`users to "access it [Mastery Python 3 Basics Tutorial Series + SQLite with
`
`python]" as of March 22, 2020 – seven hundred and ninety-nine (799) days after
`
`Kinsley submitted his DMCA takedown. It appears as though Udemy only
`
`removed Kinsley's course after his DMCA takedown as available for new sales.
`
`Udemy was still permitting users who had purchased Kinsley's course to view his
`
`material on Udemy.com. It can hardly be said that Udemy's actions of failing to
`
`take down Kinsley's content more than two years after the takedown notice was
`
`received was expeditious.
`
`Conspicuously absent from any of Udemy's pleadings is an assertion that
`
`access was revoked. The declaration of Athena Whitmore merely states that "14.
`
`Udemy's policy is that once a course is removed, that course is no longer available
`
`to any students, even those that previously purchased the course." (ER-146) No
`
`
`
`14
`
`
`
`Case: 21-15787, 02/28/2022, ID: 12382565, DktEntry: 30, Page 20 of 38
`
`matter what Udemy's policy says, Udemy's own website was providing users
`
`instructions to access Kinsley's courses as late as March 22, 2020.
`
`Kinsley was also significantly harmed by Udemy's actions. This Circuit had
`
`a long-standing rule that a likelihood of success on the merits of a copyright
`
`infringement case created a presumption of irreparable injury. While irreparable
`
`harm may no longer be presumed, Flexible Lifeline Sys. v. Precision Lift, Inc., 654
`
`F.3d 989, 998 (9th Cir 2011), Kinsley can show a lessening of traffic to his
`
`YouTube channel along with many comments from his fans expressing
`
`disappointment at his association with a website like Udemy.com.
`
`Udemy is not entitled to the safe harbor provision of 35 U.S.C. §512 (c)
`
`because its response was not expeditious. Kinsley submits to this Court that the
`
`District Court's order should be reversed on these facts alone.
`
`B. THE DOCUMENTS SWEPT UP IN THE AMBIT OF UDEMY'S
`MASS, INDISCRIMINATE, AND ROUTINIZED
`CONFIDENTIALITY DESIGNATION SHOW THAT UDEMY
`HAD RED FLAG KNOWLEDGE OF COPYRIGHT
`INFRINGEMENT OF OPENCV WITH PYTHON FOR IMAGE
`AND VIDEO ANALYSIS – HANDS ON! AND DID NOTHING
`ABOUT IT UNTIL KINSLEY HIMSELF SUBMITTED A DMCA
`TAKEDOWN 36 DAYS LATER.
`
`OpenCV was apparently uploaded to Udemy's website on May 4, 2018.
`
`Shortly thereafter, without Kinsley's involvement at all, there were internal
`
`discussions concerning red flags about this course. Documents which show this
`
`were produced in discovery but are subject to the protective order currently in
`
`
`
`15
`
`
`
`Case: 21-15787, 02/28/2022, ID: 12382565, DktEntry: 30, Page 21 of 38
`
`place. They show that Udemy "banned" this course but reinstated it shortly
`
`thereafter. Kinsley's course remained available for sale at least until Kinsley
`
`submitted his DMCA takedown notice on June 20, 2018. Udemy ignored the red
`
`flags outlined in its own internal policy and procedures manual. This course was
`
`available for sale on Udemy's website for at least 36 days after Udemy had internal
`
`discussions concerning the course and in which employees stated that the course
`
`should be removed. Kinsley was unable to obtain a capture of the website for his
`
`OpenCV course but Kinsley believes that this course was also available for
`
`viewing on Udemy.com at least until March 22, 2020. Either way, the present state
`
`of the evidence indicates that the course was still available for sale on Udemy.com
`
`for 36 days after Udemy became aware of red flags. Udemy's response regarding
`
`Kinsley's OpenCV course was also not expeditious. These facts are an
`
`independent reason for reversal.
`
`II. UDEMY IS GENERALLY NOT ENTITLED TO THE SAFE
`HARBOR PROVISION OF 35 U.S.C. §512 BECAUSE IT IS NOT A
`SERVICE PROVIDER UNDER THE MEANING OF 17 U.S.C. § 512
`(K)(1).
`
`Udemy is not a "service provider" under the applicable law. Udemy curates
`
`the courses that are available on its website and it modifies the content by placing
`
`its own watermark in the available videos.
`
`17 U.S.C. § 512 (K)(1) provides the definition of service provider:
`
`
`
`16
`
`
`
`Case: 21-15787, 02/28/2022, ID: 12382565, DktEntry: 30, Page 22 of 38
`
` (A) As used in subsection (a), the term “service provider”
`means an entity offering the transmission, routing, or providing of
`connections for digital online communications, between or among
`points specified by a user, of material of the user’s choosing, without
`modification to the content of the material as sent or received.
`(B) As used in this section, other than subsection (a), the term
`“service provider” means a provider of online services or network
`access, or the operator of facilities therefor, and includes an entity
`described in subparagraph (A).
`
`
`
`The declaration of Athena Whitmore admits that Udemy reviews and selects
`
`what material is posted to its website:
`
`"7. Every publicly available course posted to Udemy goes
`through a quality review process before becoming available for
`consumption.
`8. The quality review process is limited to a brief review
`confirming that the course has content, quality audio and video, and a
`properly-formatted course landing page describing the course and
`instructor." (ER-145)
`
`
`
`Although Udemy seeks to downplay its involvement, the fact remains that a
`
`human employee manually views and approves each and every course that it offers
`
`for sale on its website. Udemy does not merely offer the "transmission, routing, or
`
`providing of connections for digital online communications" as required by the
`
`statute. It is no passive service provider – it actively selects and approves which
`
`courses are available on its website via its "quality review process". Udemy also
`
`does not simply transmit "material of the user's choosing". Udemy only transmits
`
`the material Udemy chooses to transmit.
`
`
`
`17
`
`
`
`Case: 21-15787, 02/28/2022, ID: 12382565, DktEntry: 30, Page 23 of 38
`
`Additionally, 17 U.S.C. § 512 (K)(1) requires that a service provider
`
`transmit the user
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