Case 3:22-cv-05238-JLR Document 103 Filed 04/27/23 Page 1 of 10
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`AL-HARETH AL-BUSTANI,
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`CASE NO. C22-5238JLR
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`Plaintiff,
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`v.
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`SEAN B. ALGER, et al.,
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`ORDER
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`Defendants.
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`I.
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`INTRODUCTION
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`Before the court is Defendant Gen Media Partners LLC’s (“Gen Media”) motion
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`to dismiss Plaintiff Al-Hareth Al-Bustani’s second amended complaint. (MTD (Dkt.
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`# 97); Am. Reply (Dkt. # 102).) Mr. Al-Bustani opposes the motion. (Resp (Dkt.
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`# 100).) The court has reviewed the parties’ submissions, the relevant portions of the
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`ORDER - 1
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`Case 3:22-cv-05238-JLR Document 103 Filed 04/27/23 Page 2 of 10
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`record, and applicable law. Being fully advised,1 the court GRANTS Gen Media’s
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`motion.
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`II.
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`BACKGROUND
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`Mr. Al-Bustani’s claims against Gen Media arise from its relationship with
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`Defendant Louis Clyde Holder,2 whom Mr. Al-Bustani accuses of direct copyright
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`infringement. (See 2d Am. Compl. (Dkt. # 94) ¶¶ 34-37, 62-71.3) Mr. Holder hosts a
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`nationally syndicated radio program, Ground Zero (the “Ground Zero Show”). (Id. ¶ 34.)
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`Mr. Al-Bustani’s late wife, Tracy Twyman, an author and media personality, was a
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`frequent guest on the Ground Zero Show. (Id. ¶¶ 24-25.) In addition to hosting the
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`Ground Zero Show, Mr. Holder maintains a page on the website Aftermath Media (the
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`“Website”). (Id. ¶¶ 38, 42-43.) According to Mr. Al-Bustani, the Website “bills itself as
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`‘the Official Digital Playground for Ground Zero with Clyde Lewis’ and a paid
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`membership is required in order to access the content.” (Id. ¶ 38.) Mr. Al-Bustani
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`alleges that after Ms. Twyman died, Mr. Holder posted links to PDF copies of some of
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`her written works (the “Works”) on the Website. (See id. ¶ 38.) Mr. Al-Bustani alleges
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`that the Works are subject to copyright protection, and that Mr. Holder uploaded the
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`1Gen Media requests oral argument (see Mot. at 1), but the court has determined that oral
`argument would not be helpful to its disposition of the motion, see Local Rules W.D. Wash.
`LCR 7(b)(4).
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` Both parties refer to Defendant Louis Clyde Holder by his alias, Clyde Lewis. (See 2d
`Am. Compl.; MTD.) For clarity, the court refers to Mr. Holder by his legal name. (See Dkt.)
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` The court detailed the factual background of this case in its August 9, 2022 order and
`does not repeat that background here. (See 8/9/22 Order (Dkt. # 35).) Instead, the court
`discusses only the factual and procedural background relevant to the instant motion.
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`ORDER - 2
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`Case 3:22-cv-05238-JLR Document 103 Filed 04/27/23 Page 3 of 10
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`Works for his paid subscribers to access without Ms. Twyman’s authorization. (Id.
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`¶¶ 26, 38; see also id. ¶ 1 (asserting that Mr. Al-Bustani is registered as the Claimant of
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`the Works).)
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`Mr. Al-Bustani alleges that Gen Media is the parent company to Sun Audio
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`Networks, LLC (“Sun Audio”), which was responsible for marketing and licensing the
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`Ground Zero Show to radio stations. (Id. ¶¶ 39, 41, 44.) Sun Audio first entered a “Sales
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`and Affiliation Agreement” with Mr. Holder on March 27, 2019. (Id. ¶ 39 Ex. B (the
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`“Agreement”).4) In relevant part, the Agreement provided that Mr. Holder (referred to as
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`“Owner”) would “develop, host and produce the Shows,” and was “responsible for the
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`day to day management of the staff and process to distribute the Shows for broadcast,
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`including . . . websites.” (Agreement § 3(a)-(b).) Sun Audio and Mr. Holder mutually
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`represented in the Agreement that, “no material furnished about the Shows or
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`promotional materials[] will infringe upon the rights of any third party, including but not
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`limited to copyright, trademark, and rights of privacy.” (Id. § 9(b).) The Agreement
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`further provided that either party could terminate the Agreement “for cause,” which
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`included any “material violation of law” or “breach of either part[y’s] obligations under
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`this agreement.” (Id. § 8(b).) The Agreement was effective between May 1, 2019, and
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`December 31, 2020. (Id. § 8(a).)
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`4 The court considers the Agreement because it is attached to the second amended
`complaint. See, e.g., United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (noting that a
`court may consider documents attached to the complaint on a 12(b)(6) motion to dismiss); Fed.
`R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the
`pleading for all purposes.”).
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`ORDER - 3
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`Case 3:22-cv-05238-JLR Document 103 Filed 04/27/23 Page 4 of 10
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`Mr. Al-Bustani alleges that the Website “acted as a draw and created a wider
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`audience for the [Ground Zero] Show[], which, in turn, resulted in increased revenues.”
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`(2d Am. Compl. ¶ 43.) The allegedly increased revenues, Mr. Al-Bustani asserts, created
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`“an economic incentive for Sun [Audio] to tolerate [Mr. Holder’s] infringing conduct
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`(without paying licensing fees to Plaintiff) and a direct financial benefit for Sun [Audio].”
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`(Id.) According to Mr. Al-Bustani, Sun Audio “could have terminated the Agreement,
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`thereby leaving [Mr. Holder] without the means and ability to reach the broad audience
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`the Agreement had allowed him to reach, but Sun [Audio] chose instead to tolerate the
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`infringement on the Website until late 2020” when the parties’ relationship ended. (Id.)
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`Mr. Al-Bustani filed the instant action on April 11, 2022, and named Gen Media
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`as a defendant in an amended complaint filed September 22, 2022. (See Compl. (Dkt.
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`# 1); FAC (Dkt. # 44).) On Gen Media’s motion to dismiss Mr. Al-Bustani’s first
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`amended complaint, the court dismissed with prejudice each of Mr. Al-Bustani’s claims
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`against Gen Media, but dismissed without prejudice Mr. Al-Bustani’s claim for vicarious
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`copyright infringement. (See 2/6/23 Order (Dkt. # 91) at 20-21.) Mr. Al-Bustani filed a
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`second amended complaint with leave of the court. (See id.; see also 2d Am Compl.)
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`Gen Media now moves to dismiss Mr. Al-Bustani’s amended claim for vicarious
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`copyright infringement with prejudice. (MTD at 2.)
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`III. ANALYSIS
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`The court first reviews the legal standard for a motion to dismiss before turning to
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`Gen Media’s motion. The court then determines whether leave to amend is appropriate.
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`ORDER - 4
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`Case 3:22-cv-05238-JLR Document 103 Filed 04/27/23 Page 5 of 10
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`A.
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`Legal Standard for a Motion to Dismiss
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`Federal Rule of Civil Procedure 12(b)(6) provides for dismissal when a complaint
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`“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
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`Under this standard, the court construes the complaint in the light most favorable to the
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`nonmoving party, Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946
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`(9th Cir. 2005), and asks whether the complaint contains “sufficient factual matter,
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`accepted as true, to ‘state a claim to relief that is plausible on its face,’” Ashcroft v. Iqbal,
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`556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
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`(2007)). The court is not, however, required to accept as true legal conclusions or
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`“formulaic recitation[s] of the legal elements of a cause of action,” Chavez v. United
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`States, 683 F.3d 1102, 1008 (9th Cir. 2012), or “allegations that are merely conclusory,
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`unwarranted deductions of fact,” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998
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`(9th Cir. 2010). “A claim has facial plausibility when the plaintiff pleads factual content
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`that allows the court to draw the reasonable inference that the defendant is liable for the
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`misconduct alleged.” Iqbal, 556 U.S. at 678.
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`B. Whether Mr. Al-Bustani Fails to State a Claim for Vicarious Copyright
`Infringement
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`“Vicarious infringement occurs when one profits from direct infringement while
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`declining to exercise a right to stop or limit” the directly infringing activity. Ludvarts,
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`LLC v. AT & T Mobility, LLC, 710 F.3d 1068, 1071 (9th Cir. 2013) (citing
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`Metro-Goldwyn-Meyer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005)). A
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`plaintiff must therefore plausibly plead the predicate claim for direct infringement in
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`ORDER - 5
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`Case 3:22-cv-05238-JLR Document 103 Filed 04/27/23 Page 6 of 10
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`order to survive a motion to dismiss his vicarious infringement claim. See, e.g., Grokster,
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`545 U.S. at 930.5
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`Once the plaintiff has established direct infringement, he must plausibly allege that
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`“the defendant has (1) the right and ability to supervise the infringing conduct and (2) a
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`direct financial interest in the infringing activity.” Perfect 10, Inc. v. Visa Int’l Serv.
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`Ass’n, 494 F.3d 788, 802 (9th Cir. 2007) (citing Ellison v. Robertson, 357 F.3d 1072,
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`1078 (9th Cir. 2004)). To establish the first element, the plaintiff must plausibly allege
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`that the defendant has the practical ability to stop the infringing conduct. See id. For
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`instance, in Perfect 10, Inc. v. Visa International Service Ass’n, the Ninth Circuit rejected
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`an argument that credit card companies could be vicariously liable for the infringing
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`activities of merchants who used their services. Visa Int’l, 494 F.3d at 802-06. There,
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`the plaintiff argued that the credit card companies “provide a system that allows the
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`business of infringement for profit to operate on a larger scale than it otherwise might,
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`and [the credit card companies have] the ability to deny users access to [their] payment
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`system.” Id. at 803. The Ninth Circuit concluded that Visa’s options to refuse to process
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`credit card payments to the infringing merchant or threaten to do so if the merchant fails
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`to cease infringing conduct were not enough to establish “the right and ability to
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`supervise and control the infringement, not just affect it.” Id. (emphasis in original). The
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`5 A plaintiff establishes a prima facie case of direct infringement by demonstrating
`(1) ownership of the allegedly infringed material and (2) that the alleged infringers violated at
`least one exclusive right granted to copyright holders. A & M Records, Inc. v. Napster, Inc., 239
`F.3d 1004, 1013 (9th Cir. 2001); see also 17 U.S.C. § 106 (defining a copyright holder’s five
`exclusive rights as to reproduce, prepare derivatives of, distribute copies of, perform, and display
`the copyrighted work).
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`ORDER - 6
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`Case 3:22-cv-05238-JLR Document 103 Filed 04/27/23 Page 7 of 10
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`defendant’s “mere ability to withdraw a financial ‘carrot,’” the Court concluded, “does
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`not create the ‘stick’ of ‘right and ability to control’ that vicarious infringement requires.”
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`Id.
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`Solely for the purpose of ruling on this motion, the court assumes without deciding
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`that Mr. Al-Bustani has established his predicate claim of direct copyright infringement
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`based on Mr. Holder’s posts to the Website. The court analyzes whether Mr. Al-Bustani
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`has plausibly pled his vicarious copyright infringement claim.
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`Gen Media asserts that Mr. Al-Bustani has failed to plausibly allege a claim for
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`vicarious copyright infringement because Mr. Al-Bustani has not established that Gen
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`Media exerted the requisite supervision and control over Mr. Holder and the Website.
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`(MTD at 6-9.) Gen Media argues that Mr. Al-Bustani’s allegation that the Agreement
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`gave Gen Media the right to control or supervise Mr. Holder’s activities (see 2d Am.
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`Compl. ¶ 43) does not plausibly state a claim for relief (MTD at 7). Gen Media
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`analogizes the present case to Perfect 10, Inc. v. Amazon.com, 508 F.3d 1146 (9th Cir.
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`2007), in which the Ninth Circuit determined that Google’s right to terminate its contracts
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`with third-party websites for violating others’ copyrights did “not give Google the right
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`to stop direct infringement by third-party websites.” (Id. (citing 508 F.3d at 1173-74).)
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`In support of this conclusion, the Court noted “[a]n infringing third-party website can
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`continue to reproduce, display, and distribute its infringing copies of Perfect 10 images
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`after its [relationship with Google] has ended.” Amazon.com, 508 F.3d at 1174. Gen
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`Media notes that here, the allegedly infringing material remained on the Website after
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`Gen Media’s relationship with Mr. Holder concluded in December 2020. (MTD at 8.)
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`ORDER - 7
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`Mr. Al-Bustani responds by urging the court to disregard Amazon.com and Visa
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`International’s requirement that a plaintiff must allege more than that the defendant could
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`terminate its contract with an infringing party to establish the defendant’s requisite degree
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`of supervision and control. (See Resp. at 7-10.) Mr. Al-Bustani asserts that two
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`unpublished decisions from the Southern District of Florida “indicate a shift in the law,”
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`and argues that these cases require only evidence of a defendant’s right to withhold
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`compensation from an infringing party to satisfy the first element of a vicarious copyright
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`infringement claim. (Id. at 8-9 (first citing UMG Recordings, Inc. v. Vital Pharm., CASE
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`NO.: 21-cv-60914-CIV-DIMITROULEAS/SNOW, 2022 WL 2670339, at *10-11 (S.D.
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`Fla. July 11, 2022); and then citing Sony Music Entm’t v. Vital Pharm., Inc., CASE NO.
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`21-22825-CIV-DIMITROULEAS, 2022 WL 4771858, at *12 (S.D. Fla. Sept. 14,
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`2022)).) In light of the weight of binding authority holding that a right to terminate an
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`agreement, without more, is not enough to establish the requisite degree of control, the
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`court declines to adopt the conclusions reached in Sony Music and UGM Recordings.6
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`The court agrees with Gen Media that Sun Audio’s Agreement with Mr. Holder
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`gave Gen Media only the “mere ability to withdraw a financial ‘carrot,’” which “does not
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`create the ‘stick’ of ‘right and ability to control’ that vicarious infringement requires.”
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`6 Regardless, UGM Recordings and Sony Music are distinguishable. In both cases, the
`defendant accused of vicarious copyright infringement audited the allegedly infringing content
`before its contractors published the content; the defendant therefore had not only “the legal right”
`but also “the practical ability” to stop its contractors from publishing infringing content. Sony
`Music, 2022 WL 4771858, at *12; see also UMG Recordings, 2022 WL 2670339, at *9
`(describing auditing process). Here, by contrast, Mr. Al-Bustani does not allege that Gen Media
`or its subsidiary had the authority to review Website content prior to publication. (See generally
`2d Am. Compl.; Resp.)
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`ORDER - 8
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`Case 3:22-cv-05238-JLR Document 103 Filed 04/27/23 Page 9 of 10
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`Visa Int’l, 494 F.3d at 803. The fact that the allegedly infringing material remained on
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`the Website after Gen Media’s relationship with Mr. Holder concluded further
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`undermines Mr. Al-Bustani’s argument that Gen Media could have stopped Mr. Holder’s
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`alleged direct infringement by exercising its right to terminate the Agreement. See
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`Amazon.com, 508 F.3d at 1173-74 (noting, “Google’s right to terminate [a] partnership
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`does not give Google the right to stop direct infringement”). Lacking evidence that Gen
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`Media had a practical ability to stop the alleged direct infringement, Mr. Al-Bustani fails
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`to plausibly allege that Gen Media had the right and ability to supervise the alleged
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`infringement. See id.
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`Mr. Al-Bustani’s failure to establish the first element is fatal to his vicarious
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`copyright infringement claim, and the court need not reach the second element of his
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`claim or address Gen Media’s additional arguments. The court GRANTS Gen Media’s
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`motion to dismiss Mr. Al-Bustani’s claim for vicarious copyright infringement.
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`C.
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`Leave to Amend
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`On a Rule 12(b)(6) motion, “a district court should grant leave to amend . . . unless
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`it determines that the pleading could not possibly be cured by the allegation of other
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`facts.” Cook, Perkiss & Liehe v. N. Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir.
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`1990). The court, however, retains discretion to deny leave to amend, particularly where
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`the plaintiff has previously filed an amended complaint. Allen v. City of Beverly Hills,
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`911 F.2d 367, 373 (9th Cir. 1996); Turner v. Cnty. of Los Angeles, 18 F. App’x 592, 597
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`(9th Cir. 2001) (concluding that the court did not abuse its discretion in denying the
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`second amended complaint with prejudice and without leave to amend where the court
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`ORDER - 9
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`Case 3:22-cv-05238-JLR Document 103 Filed 04/27/23 Page 10 of 10
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`had already allowed the plaintiff to amend their complaint with instructions on how to
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`cure the complaint’s deficiencies); Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1052 (9th
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`Cir. 2008) (“Appellants fail to state what additional facts they would plead if given leave
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`to amend . . . . Accordingly, amendment would be futile.”).
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`Gen Media urges the court to dismiss Mr. Al-Bustani’s claim without leave to
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`amend. (MTD at 5, 12.) Mr. Al-Bustani has already amended his complaint twice (see
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`Dkt.), and attempted to cure the deficiencies in his vicarious copyright infringement
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`claim the second (compare 2d Am. Compl. ¶¶ 39-44 (adding new factual allegations in
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`support of this claim), with FAC). Mr. Al-Bustani does not request leave to amend a
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`third time. (See generally Resp.) Because Mr. Al-Bustani has had sufficient opportunity
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`to cure deficiencies in his complaint and has failed to plausibly allege a claim for
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`vicarious copyright infringement against Gen Media, the court declines to give Mr.
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`Al-Bustani leave to amend his complaint a third time. See Allen, 911 F.2d at 373.
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`IV. CONCLUSION
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`For the foregoing reasons, the court GRANTS Gen Media’s motion to dismiss
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`(Dkt. # 97). Mr. Al-Bustani’s claim for vicarious copyright infringement against
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`Defendant Gen Media LLC is DISMISSED with prejudice and without leave to amend.
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`Dated this 27th day of April, 2023.
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`A
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`JAMES L. ROBART
`United States District Judge
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`ORDER - 10
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