Case 2:22-cv-00678-JNP-DAO Document 77 Filed 01/23/24 PageID.451 Page 1 of 12
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`UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
`CENTRAL DIVISION
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`VICTORIA SETHUNYA,
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`Plaintiff,
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`v.
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`TIKTOK INC.; C3780792 TIKTOK, INC.;
`META PLATFORMS, INC.; and
`FACEBOOK, INC.,
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`Defendants.
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`REPORT AND RECOMMENDATION
`TO GRANT META’S MOTION FOR
`SUMMARY JUDGMENT
`(DOC. NO. 55)
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`Case No. 2:22-cv-00678
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`District Judge Jill N. Parrish
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`Magistrate Judge Daphne A. Oberg
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` Pro se Plaintiff Victoria Sethunya filed this action against TikTok, Inc., and C3780792
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`TikTok, Inc., on October 21, 2022.1 With leave of court, Ms. Sethunya filed a second amended
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`complaint adding Meta Platforms, Inc. as a defendant.2 The thrust of Ms. Sethunya’s argument
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`is that TikTok and Meta failed to remove users’ reproductions of her copyrighted content, which
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`Ms. Sethunya alleges amounts to copyright infringement and harassment. Meta filed a motion to
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`dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure,3
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`which the court converted to a motion for summary judgment, and permitted the parties to file
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`additional materials and briefing, because both parties relied on documents outside the
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`1 (See Compl., Doc. No. 13.)
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`2 (See Second Am. Compl., Doc. No. 20.) Ms. Sethunya’s second amended complaint is the
`operative complaint in this case.
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`3 (See Meta Platforms, Inc.’s Mot. to Dismiss Second Am. Compl. for Failure to State a Claim
`(“Mot.”), Doc. No. 55.)
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`1
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`pleadings.4 Because Ms. Sethunya fails to support a claim that Meta infringed her copyright and
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`the court lacks original subject-matter jurisdiction on any tort claims, the undersigned 5
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`recommends the district judge grant Meta’s motion for summary judgment6 and dismiss any
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`potential tort claims without prejudice.
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`LEGAL STANDARDS
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`Summary judgment may be granted only where “the movant shows that there is no
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`genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
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`law.”7 “A fact is material if, under the governing law, it could have an effect on the outcome of
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`the lawsuit.”8 “A dispute over a material fact is genuine if a rational jury could find in favor of
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`the nonmoving party on the evidence presented.”9 In evaluating a motion for summary
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`judgment, the court views “the facts in the light most favorable to the nonmovant and draw[s] all
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`reasonable inferences in the nonmovant’s favor.”10 But “where the non-moving party will bear
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`the burden of proof at trial on a dispositive issue that party must go beyond the pleadings and
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`designate specific facts so as to make a showing sufficient to establish the existence of an
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`4 (Order Converting Mot. to Dismiss to Mot. for Summ. J., Doc. No. 67.)
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`5 On November 15, 2022, this case was referred to the undersigned magistrate judge pursuant to
`28 U.S.C. § 636(b)(1)(B). (Doc. No. 10.)
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`6 (Doc. No. 55.)
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`7 Fed. R. Civ. P. 56(a).
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`8 Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013) (internal quotation marks omitted).
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`9 Id. (internal quotation marks omitted).
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`10 Jones v. Norton, 809 F.3d 564, 573 (10th Cir. 2015).
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`2
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`element essential to that party’s case in order to survive summary judgment.”11 A party asserting
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`a fact cannot be or is genuinely disputed on summary judgment must support the assertion by
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`“citing to particular parts of materials in the record, including depositions, documents,
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`electronically stored information, affidavits or declarations, stipulations (including those made
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`for purposes of the motion only), admissions, interrogatory answers, or other materials.”12
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`This means “[u]nsupported conclusory allegations [] do not create a genuine issue of
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`fact,”13 and “mere speculation unsupported by evidence is insufficient to resist summary
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`judgment.”14 Moreover, this court also has an “independent obligation to determine
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`whether subject-matter jurisdiction exists, even in the absence of a challenge from any
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`party.”15
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`Because Ms. Sethunya proceeds pro se, her filings are liberally construed and held “to a
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`less stringent standard than formal pleadings drafted by lawyers.”16 Still, pro se plaintiffs must
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`“follow the same rules of procedure that govern other litigants.”17 For instance, a pro se plaintiff
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`“still has the burden of alleging sufficient facts on which a recognized legal claim could be
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`11 McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998) (internal quotation
`marks omitted).
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`12 Fed. R. Civ. P. 56(c)(1).
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`13 L & M Enters. v. BEI Sensors & Sys. Co., 231 F.3d 1284, 1287 (10th Cir. 2000).
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`14 Martinez v. CO2 Servs., 12 F. App’x 689, 695 (10th Cir. 2001) (unpublished) (citing Peterson
`v. Shanks, 149 F.3d 1140, 1144–45 (10th Cir. 1998)).
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`15 1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006)
`(internal quotation marks omitted).
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`16 Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
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`17 Garrett v. Selby, Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
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`based.”18 While the court must make some allowances for a pro se plaintiff’s “failure to cite
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`proper legal authority, [her] confusion of various legal theories, [her] poor syntax and sentence
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`construction, or [her] unfamiliarity with pleading requirements,”19 the court “will not supply
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`additional factual allegations to round out a plaintiff’s complaint or construct a legal theory on a
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`plaintiff’s behalf.”20
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`ANALYSIS
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`The allegations in Ms. Sethunya’s second amended complaint relate to a video Ms.
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`Sethunya created on the social media platform, TikTok, in response to the deportation of her
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`son.21 Ms. Sethunya contends the video became so popular that she trimmed it into a sound
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`clip—the “I am Doing Blasphemy” sound clip—which other TikTok users could use.22 Ms.
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`Sethunya later posted the sound clip on Instagram, a social media platform owned by Meta.23
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`Ms. Sethunya also alleges she registered the “Blasphemy sound” with the United States
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`Copyright Office.24 However, Ms. Sethunya soon discovered other TikTok and Instagram users
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`18 Jenkins v. Currier, 514 F.3d 1030, 1032 (10th Cir. 2008) (internal quotation marks omitted).
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`19 Hall, 935 F.2d at 1110.
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`20 Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009) (internal quotation marks
`omitted).
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`21 (Second Am. Compl. 3, Doc. No. 20.)
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`22 (Id. at 3–4.)
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`23 (See id. at 7.) Ms. Sethunya also named Facebook, Inc. as a defendant, which is also owned
`by Meta. Ms. Sethunya does not appear to allege any claims against Facebook and only includes
`the entity as a defendant because Meta was “previously known as Facebook, Inc.” (Id. at 6; see
`also Mot. 4 n.2, Doc. No. 55 (“Facebook, Inc.’s name was changed to Meta Platforms, Inc. on
`October 28, 2021.”).) Accordingly, the court treats Facebook and Meta as the same entity.
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`24 (Second Am. Compl. 6, Doc. No. 20.)
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`were using the sound clip for comedic purposes instead of her intended use (promoting her
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`efforts to reunite with her son).25
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`Ms. Sethunya claims she hired a private copyright enforcement company, who requested
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`that Meta delete videos allegedly violating her copyright.26 But Meta only removed some of the
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`videos from the Instagram website, refusing to remove others.27 Ms. Sethunya asserts Meta is
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`allowing its users to use her copyrighted sound “without acknowledging her”28 and “without her
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`permission and in violation of the copyright laws to make her PTSD worse.”29 Ms. Sethunya is
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`“requesting the court to apply all the necessary remedies to cure the unfairness, award punitive
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`damages to deter future harm and also issue a restraining order to stop . . . Instagram’s/Meta
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`Platforms violations of the copyright laws.”30
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`Meta filed a motion to dismiss, which the court converted to a motion for summary
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`judgment because the parties relied on documents and information outside the pleadings.31 Both
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`parties were permitted to file additional material and briefing in support of their positions on the
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`motion.32 Meta makes three arguments in support of its motion. First, Meta argues that when
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`Ms. Sethunya posted the sound to Instagram, she agreed to Instagram’s Terms of Service, which
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`25 (Id. at 3–4, 7–8.)
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`26 (Id. at 6–7.)
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`27 (Id.)
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`28 (Id. at 6.)
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`29 (Id. at 8.)
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`30 (Id.)
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`31 (Order Converting Mot. to Dismiss to Mot. for Summ. J., Doc. No. 67.)
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`32 (See id. at 2–3.)
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`grants Meta a license to use the sound.33 Second, Meta contends the safe harbor provision of the
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`Digital Millennium Copyright Act (“DMCA”),34 which provides immunity to digital service
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`providers that lack knowledge of copyright infringement by their users, shields Meta from
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`liability.35 Third, according to Meta, Ms. Sethunya’s allegation that Meta’s users (not Meta)
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`copied her content, fails to satisfy the volitional conduct requirement of a copyright infringement
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`claim.36
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`Ms. Sethunya responds that the Instagram Terms of Service do not bar her claim because,
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`although she posted the video to Instagram, other users had already posted content infringing her
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`copyright before Ms. Sethunya posted the video; she lacked the capacity to enter into a contract;
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`Meta ignored her requests to remove infringing content; Meta’s motion to dismiss is an ad
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`hominem attack that does not address the merits of her argument; Meta is “trigger[ing] her
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`PTSD”; and she provided information reasonably sufficient to permit Meta to locate the alleged
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`infringing material. 37 In addition to reiterating its previous arguments, Meta replies that Ms.
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`Sethunya posted her video before any alleged infringement, and she cannot show incapacity.38
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`Meta’s motion for summary judgment should be granted on two independent grounds:
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`first, Ms. Sethunya granted Meta a license to use the recording, and second, the DMCA protects
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`33 (See Mot. 6–9, Doc. No. 55.)
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`34 17 U.S.C. § 512(c).
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`35 (Mot. 9–11, Doc. No. 55.)
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`36 (Id. at 11–12.) It is unnecessary to address this final argument where the court recommends
`summary judgment be granted to Meta on other grounds.
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`37 (Resp. to Meta Instagram’s Mot. (“Opp’n”) 3–13, Doc. No. 62.)
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`38 (Reply in Supp. of Meta Platforms, Inc’s Mot. to Dismiss Second Am. Compl. for Failure to
`State a Claim (“Reply”) 1–6, Doc. No. 63.)
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`Meta from this suit. Accordingly, Meta’s motion for summary judgment39 should be granted. If
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`the district judge accepts this recommendation, no federal claims will remain. Where Ms.
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`Sethunya did not assert any independent basis for subject-matter jurisdiction over her tort claims,
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`the tort claims should be dismissed without prejudice.
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`I.
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` Ms. Sethunya granted Meta a license to use the recording.
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`“To establish copyright infringement, a plaintiff must prove (1) ownership of a valid
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`copyright and (2) unauthorized copying of constituent elements of the work.”40 A copyright
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`owner who grants a license to use her material waives his right to sue the licensee for
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`infringement of that copyright.41
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`Ms. Sethunya admits she posted her Blasphemy sound on Instagram.42 Under
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`Instagram’s Terms of Service, to which users must agree in order to post content, users “grant to
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`[Meta] a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use,
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`distribute, modify, run, copy, publicly perform or display, translate, and create derivative works”
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`of content users post.43 Even if Ms. Sethunya could prove Meta—rather than its users—
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`infringed her copyright, the license she granted to Meta when she agreed to Instagram’s Terms of
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`Service shows Meta is entitled to judgment as a matter of law.
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`39 (Doc. No. 55.)
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`40 Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir. 2005) (emphasis
`added).
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`41 See, e.g., Boatman v. U.S. Racquetball Ass’n, 33 F. Supp. 3d 1264, 1271 (D. Colo. 2014).
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`42 (See Second Am. Compl. 7, Doc. No. 20.)
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`43 (Ex. 1 to Mot., Decl. of Ambika Kumar, Doc. No. 55-2 at 8.)
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`Ms. Sethunya does not dispute the validity of Instagram’s Terms of Service, but she
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`makes two arguments in support of her position that the Terms of Service do not bar her claim.
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`Both fail. First, she argues (or at least suggests) she did not have the capacity to enter into a
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`contract because she has PTSD.44 But Ms. Sethunya explains throughout her various filings
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`(which she filed herself) that, during the period of her alleged incapacitation, she was a graduate
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`student working on a master’s degree in English;45 she “successfully defend[ed] an
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`approximately 39-page research paper”;46 she was an “independent teacher” who taught 1600
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`hours of music, genetics, and math;47 she hired a third-party copyright enforcement company
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`(presumably by signing a contract);48 she filed a tax return;49 and she obtained a United States
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`copyright registration.50 Even acknowledging Ms. Sethunya’s assertions of PTSD, anxiety, and
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`depression, the evidence demonstrates her capacity was not “so deficient or impaired” that she
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`lacked “sufficient power to comprehend the subject of the contract.”51
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`44 (Opp’n 3–4, Doc. No. 62; see also App’x 1, Doc. No. 72-1 (psychologist’s report stating Ms.
`Sethunya’s PTSD gives her “relentless anxiety and depression”).)
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`45 (Mot. to Req. Time 1, Doc. No. 37.)
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`46 (Id.)
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`47 (Second Am. Compl. 2, Doc. No. 20.)
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`48 (Id. at 4.)
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`49 (Id. at 2.)
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`50 (Id. at 6.)
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`51 Wittingham, LLC v. TNE Ltd. P’ship, 2020 UT 49, ¶ 58, 469 P.3d 1035 (citation omitted); see
`also United States v. McCall, 235 F.3d 1211, 1215 (10th Cir. 2000) (noting state law governs
`issues of contract formation and enforceability).
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`Second, Ms. Sethunya argues that even though she posted the Blasphemy sound on
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`Instagram, other users posted it before Ms. Sethunya herself did.52 But Ms. Sethunya posted the
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`content on Instagram on August 16, 2022,53 and she alleges her copyright registration became
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`effective on October 2, 2022.54 Ms. Sethunya cannot show infringement occurred before she
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`posted the video where she did not have a copyright until six weeks after she posted the video.
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`Meta’s motion for summary judgment as to the copyright infringement claims should be
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`granted because even viewing the undisputed facts in the light most favorable to Ms. Sethunya,
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`she granted Meta a license to use her content when she posted it on Instagram.
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`II. The DMCA protects Meta from Ms. Sethunya’s claims.
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`The DMCA55 constitutes a second independent basis for granting summary judgment to
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`Meta on the copyright infringement claims. The DMCA’s safe-harbor provision protects digital
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`service providers from copyright infringement liability if the provider lacks “actual knowledge”
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`of infringement or “is not aware of facts or circumstances from which infringing activity is
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`apparent.”56 A copyright holder can trigger such knowledge by serving a notice of infringement
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`that, among other requirements, identifies the alleged infringing material with “information
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`reasonably sufficient to permit the service provider to locate the material.”57
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`52 (See Opp’n 3, Doc. No. 62.)
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`53 (See Ex. 3 to Mot., Screenshot, Doc. No. 55-4 at 2.)
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`54 (See Second Am. Compl. 6, Doc. No. 20.)
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`55 17 U.S.C. § 512.
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`56 Id. § 512(c)(1)(A).
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`57 Id. § 512(c)(3)(A)(iii).
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`Ms. Sethunya alleges she provided notice of other users’ infringement,58 and argues her
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`notice was DMCA-compliant.59 But the only evidence she offers for this assertion is a quote in
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`her own complaint, which is alleged to be from an email or chat message she sent to Meta,
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`asserting she previously provided notice.60 Because “mere speculation unsupported by evidence
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`is insufficient to resist summary judgment,” 61 Ms. Sethunya’s failure to submit evidence of
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`DMCA-compliant notice is fatal. Summary judgment should be granted to Meta on the
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`copyright claims based on the DMCA’s safe-harbor provision.
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`III. Ms. Sethunya failed to establish this court has original subject-matter
`jurisdiction for her tort claims, and the court should decline to exercise
`supplemental jurisdiction.
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`To the extent Ms. Sethunya’s complaint raises claims sounding in tort,62 her allegations
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`fail to establish any basis for original subject-matter jurisdiction over such claims.63 She fails to
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`allege facts sufficient to establish diversity jurisdiction because she has not stated whether she
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`seeks more than $75,000 in damages and has not alleged diversity of citizenship.64 Where the
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`58 (See Second Am. Compl. 6–8, Doc. No. 20.)
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`59 (See Opp’n 2, Doc. No. 62.)
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`60 (See Second Am. Compl. 7–8, Doc. No. 20.)
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`61 Martinez, 12 F. App’x at 695 (citing Peterson, 149 F.3d at 1144–45).
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`62 (See Second Am. Compl. 2–3, 6, Doc. No. 20 (alleging “harassment”).)
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`63 Because tort claims against private actors arise from state law, not federal law, they must be
`brought in state court unless a federal court has a basis for jurisdiction over the claims (for
`example, diversity or supplemental jurisdiction). Cf. Fletcher v. Summit Food, No. 18-cv-1220,
`2020 U.S. Dist. LEXIS 75194, at *8 (D.N.M. Apr. 29, 2020) (unpublished) (“To the extent the
`Complaint raises any state law claims for . . . torts, those claims will be dismissed without
`prejudice. Plaintiff must re-file those claims in [state court] to obtain relief.”).
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`64 See 28 U.S.C. § 1332 (requiring complete diversity among parties and an amount in
`controversy exceeding $75,000).
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`undersigned recommends summary judgment be granted to Meta on Ms. Sethunya’s federal
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`copyright claims, the court should decline to exercise supplemental jurisdiction over Ms.
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`Sethunya’s tort claims65 and should dismiss them without prejudice.
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`RECOMMENDATION
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`Because the undisputed facts show Ms. Sethunya granted Meta a license to use the
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`recording and the DMCA’s safe-harbor provision protects Meta from suit, the undersigned
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`recommends the district judge grant Meta’s motion for summary judgment66 as to the copyright
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`claims.67 If the district judge accepts this recommendation, no federal claims will remain.
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`Where Ms. Sethunya did not allege any independent basis for subject-matter jurisdiction over her
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`tort claims, the undersigned also recommends the district judge dismiss the tort claims without
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`prejudice.
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`65 See Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1156 (10th Cir. 1998)
`(“When all federal claims have been dismissed, the court may, and usually should, decline to
`exercise jurisdiction over any remaining state claims.”). Ms. Sethunya has not argued this court
`should exercise supplemental jurisdiction.
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`66 (Doc. No. 55.)
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`67 Where the undersigned recommends summary judgment on independent grounds, the court
`need not address Meta’s volitional conduct argument.
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`Ms. Sethunya is notified of her opportunity to object to this report and recommendation.
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`Any objection must be filed by February 6, 2024.68 Failure to object may constitute waiver of
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`objections upon subsequent review.
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`DATED this 23rd day of January, 2024.
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`BY THE COURT:
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`_____________________________
`Daphne A. Oberg
`United States Magistrate Judge
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`68 See 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72(b)(2).
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