Case 2:22-cv-00678-JNP-DAO Document 86-1 Filed 02/28/24 PageID.546 Page 1 of 4
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`D. Matthew Moscon (6947)
`mmoscon@mayerbrown.com
`Jordan C. Hilton (17506)
`jhilton@mayerbrown.com
`MAYER BROWN LLP
`201 S. Main Street, Suite 1100
`Salt Lake City, UT 84111
`801-907-2716
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`Anthony Weibell (admitted pro hac vice)
`aweibell@mayerbrown.com
`MAYER BROWN LLP
`Two Palo Alto Square 3000 El Camino Real
`Palo Alto, CA 94306-2112
`650-331-2030
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`Attorneys for Defendant TikTok Inc.
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`UNITED STATES DISTRICT COURT
`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., et al.,
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`Defendants.
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`ORDER GRANTING TIKTOK
`INC.’S MOTION TO DISMISS THE
`SECOND AMENDED COMPLAINT
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`Case No. 2:22-cv-00678-JNP-DAO
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`Judge Jill N. Parrish
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`Magistrate Judge Daphne A. Oberg
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`Pro se plaintiff Victoria Sethunya (“Plaintiff”) filed a complaint against Defendant
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`TikTok Inc. (“TTI”) on October 21, 2022, Dkt. 13, after which the case was assigned to
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`Magistrate Judge Oberg. Dkt. 10. On March 20, 2023, Plaintiff filed her Second Amended
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`Complaint (“SAC”), Dkt. 20, which asserts claims of copyright infringement and unspecified
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`torts, and which TTI moved to dismiss under Rule 12(b)(6) (“Motion”). Dkt. 36. Magistrate
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`Judge Oberg issued a Report and Recommendation to Grant TikTok’s Motion to Dismiss
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`(“Recommendation”). Dkt. 76. Plaintiff filed her objection to the Recommendation
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`(“Objection”), Dkt. 82, to which TTI responded. Dkt. [ ]. For the reasons discussed below, the
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`Case 2:22-cv-00678-JNP-DAO Document 86-1 Filed 02/28/24 PageID.547 Page 2 of 4
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`Court OVERRULES Plaintiff’s Objection, ADOPTS the Recommendation, GRANTS TTI’s
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`Motion, and ORDERS as follows:
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`Plaintiff’s Claim for Copyright Infringement
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`TTI’s motion to dismiss Plaintiff’s claim for copyright infringement is granted. “To
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`establish copyright infringement, a plaintiff must prove (1) ownership of a valid copyright and
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`(2) unauthorized copying of constituent elements of the work.” Palladium Music, Inc. v.
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`EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir. 2005). A copyright owner who grants a
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`license to use her material waives his right to sue the licensee for infringement of that copyright.
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`See, e.g., Boatman v. U.S. Racquetball Ass’n, 33 F. Supp. 3d 1264, 1271 (D. Colo. 2014).
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`Here, Plaintiff alleges she obtained a copyright for an audio clip she posted on the
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`TikTok platform, and that TTI is allowing other users to use her sound without her permission.
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`SAC at 3-6. However, Plaintiff admits she posted her audio clip on the TikTok platform. SAC
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`3-4. Under the TikTok platform’s Terms of Service,1 to which users must agree in order to post
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`content, users “grant [TikTok] an unconditional irrevocable, non-exclusive, royalty-free, fully
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`transferable, perpetual worldwide licence to use, . . . publish and/or transmit, and/or distribute”
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`content users post, and “authorize other users . . . to view, access, use, download, modify, adapt,
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`reproduce, make derivative works of, publish and/or transmit” content users post to the
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`platform.2
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`As Judge Oberg correctly noted, “[u]nder the Terms of Service, Ms. Sethunya granted
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`a license to TikTok and other users, authorizing the use of her recording and negating any claim
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`for infringement of copyrighted material she posted on TikTok.” Dkt. 76, at 6. Plaintiff’s
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`1 At the motion to dismiss stage, courts may take judicial notice of information found on the
`internet when its authenticity is not disputed—such as a website’s Terms of Service. Labertew
`v. Winred, Inc., No. 2:21-cv-555, 2022 U.S. Dist. LEXIS 90580, at *17–18 (D. Utah May 18,
`2022) (unpublished). Where Plaintiff does not dispute the authenticity of the TikTok Terms of
`Service, the Court takes judicial notice and considers them at this stage.
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` Terms of Service, TikTok, https://www.tiktok.com/legal/page/us/terms-of-service/en.
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`Case 2:22-cv-00678-JNP-DAO Document 86-1 Filed 02/28/24 PageID.548 Page 3 of 4
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`arguments concerning her capacity to consent to the license and the validity of the license are
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`unavailing for the reasons Judge Oberg explained. Dkt. 76, at 6-8. Accordingly, her copyright
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`claim is dismissed with prejudice.
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`Plaintiff’s Claims for Unspecified Torts
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`TTI’s motion to dismiss Plaintiff’s remaining tort claims is granted. As Judge Oberg
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`correctly noted, Plaintiff’s allegations “fail to establish any basis for subject-matter jurisdiction
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`over such claims,” Dkt. 76, at 8, and Plaintiff cannot supplement the SAC through allegations
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`in her Objection. Clifford v. Dewbury Homes, 2022 WL 102279, at *5 (D. Utah Jan. 11, 2022)
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`(concluding that a pro se plaintiff who did not allege that she was entitled to a grievance hearing
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`in her amended complaint could not “do so for the first time in her Objection”). But exercising
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`diversity jurisdiction under 28 U.S.C. § 1332, as Plaintiff asks this Court to do in her Objection,
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`the remaining claims should be dismissed with prejudice because they are barred by the parties’
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`contract and the Communications Decency Act (“CDA”).
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`The parties’ contract (the TikTok Terms of Service) expressly bars Plaintiff’s claims
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`because those claims are based on her allegedly negative reaction to the content (videos and
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`comments) posted by other users on the TikTok platform. Specifically, the contract states that
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`TTI has “no obligation to pre-screen, monitor, review, or edit any content” posted to the TikTok
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`platform; that it has no obligation “to remove, disallow, block or delete” any content; and that
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`“under no circumstances will [TTI] be liable in any way” for content posted by users. Dkt. 36-
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`2, at 10, 12). Consequently, the Court cannot grant Plaintiff the relief she seeks without re-
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`writing the parties’ contract, which the Court is not permitted to do. Monaco Apartment Homes
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`v. Figueroa, 2021 UT App 50, ¶ 10, 489 P.3d 1132, 1134 (“The court will not rewrite a contract
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`to supply terms which the parties omitted.” (quoting Hal Taylor Assocs. v. Unionamerica, Inc.,
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`657 P.2d 743, 749 (Utah 1982))).
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`Case 2:22-cv-00678-JNP-DAO Document 86-1 Filed 02/28/24 PageID.549 Page 4 of 4
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`As an independent ground for dismissal, the CDA bars Plaintiff’s claims against TTI
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`because those claims are based on comments and content posted by other users to the TikTok
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`platform. Section 230(c)(1) of the CDA provides that “[n]o provider or user of an interactive
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`computer service shall be treated as the publisher or speaker of any information provided by
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`another information content provider.” 47 U.S.C. § 230(c)(1). The CDA “creates a federal
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`immunity to any state law cause of action that would hold computer service providers liable
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`for information originating with a third party.” Ben Ezra, Weinstein, & Co. v. Am. Online Inc.,
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`206 F.3d 980, 984-85 (10th Cir. 2000). The purpose of this immunity is to “facilitate the use
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`and development of the Internet by providing certain services an immunity from civil liability
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`arising from content provided by others.” F.T.C. v. Accusearch Inc., 570 F.3d 1187, 1195 (10th
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`Cir. 2009). “The prototypical service qualifying for this statutory immunity is an online
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`messaging board (or bulletin board) on which Internet subscribers post comments and respond
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`to comments posted by others.” Id.
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`Accordingly, because Plaintiff seeks to assert tort claims against TTI based on other
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`users’ comments, the CDA bars those claims. See, e.g., Anderson v. TikTok, Inc., 637 F. Supp.
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`3d 276, 278 (E.D. Pa. 2022) (concluding that TTI is “immune under the Communications
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`Decency Act” from claims alleging that content posted by other users caused injury to
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`plaintiff).
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`For these reasons, Plaintiff’s entire action is dismissed with prejudice.
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`IT IS SO ORDERED.
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`Dated: ____________________, 2024
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`_______________________
`JUDGE JILL N. PARRISH
`United States District Judge
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