Miller v. Facebook, Inc. et al

Filing 62

MOTION to Dismiss Second Amended Complaint filed by Facebook, Inc.. Motion Hearing set for 8/5/2010 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Gray, Thomas) (Filed on 6/21/2010)

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I. NEEL CHATTERJEE (STATE BAR NO. 173985) [e-mail] THOMAS J. GRAY (STATE BAR NO. 191411) [e-mail] JULIO C. AVALOS (STATE BAR NO. 255350) [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: [phone] Facsimile: 650-614-7401 Attorneys for Defendant FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

DANIEL M. MILLER, Plaintiff, v. FACEBOOK, INC. and YAO WEI YEO, Defendants.

Case No. 5:10-CV-00264 (WA) MOTION TO DISMISS SECOND AMENDED COMPLAINT Date: Time: Court: Judge: August 5, 2010 8:00 A.M. Courtroom 9, 19th Floor Honorable William Alsup

MOTION TO DISMISS SAC 5:10-CV-00264 (WHA)

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I.

INTRODUCTION The Court granted Plaintiff one last opportunity to amend his complaint and specifically

instructed him to add factual allegations explaining "how and why" Defendant Yeo's allegedly infringing game is an unlawful copy of Plaintiff's copyright. Plaintiff has failed to comply with the Court's Order and did not add the requested "clarifying" facts to his Second Amended Complaint ("SAC"). Rather, Plaintiff added one paragraph of implausible and conclusory statements regarding Defendant Yeo's purported access to and copying of Plaintiff's code. Plaintiff's newly-added allegations not only fail to satisfy the Court's orders, they actually make it more difficult to determine the factual basis for his claims. Specifically, Miller alleges for the first time that Yeo copied the Boomshine source code, rather than just the "look and feel" of the game. But the SAC is devoid of any factual basis for this new theory, a theory that in any event is belied by Plaintiff's counsel's statements at the May 27 hearing, a mere week before Plaintiff filed the SAC, that Plaintiff did not know how Defendant Yeo accessed and copied the Boomshine game. And consistent with this newly-added theory, at that same hearing, Plaintiff conceded that his copyright only covers the Boomshine source code. Consequently, because Plaintiff's copyright registration does not extend to Boomshine's unregistered visual elements, Miller lacks standing to maintain an infringement action based on Boomshine's "look and feel." The SAC demonstrates that Plaintiff is really just guessing as to what Defendant Yeo allegedly did. But the Federal Rules of Civil Procedure require more than mere speculation and unsupported conclusions. This is especially true here, where the speculative and conclusory allegations added to the SAC are inconsistent with representations made by Plaintiff's counsel only one week before. Though the Court has previously found that Plaintiff has sufficiently stated a claim for direct infringement against Defendant Yeo, Facebook respectfully submits that Plaintiff's new allegations--in addition to failing to meet the Court's express orders--in fact undercut Plaintiff's direct infringement theory and demonstrate that no such claim has been pled. Facebook respectfully requests that the SAC be dismissed with prejudice.

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MOTION TO DISMISS SAC 5:10-CV-00264 (WHA)

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II.

BACKGROUND As the Court is well aware, Plaintiff has been given a number of opportunities to try to

properly allege his direct copyright infringement claim against Defendant Yeo and his contributory infringement claim against Facebook. In an effort to sustain the matter, Plaintiff filed a Motion for Leave to Amend Complaint, the hearing for which was held on May 27, 2010. Remarkably, despite knowing about Yeo's alleged infringing activity for over a year and litigating this case for over eight months, Plaintiff's counsel conceded, "I don't know for certain how he accessed the code or how he did that." Declaration of Julio C. Avalos in Support of Motion to Dismiss Second Amended Complaint, Ex. A at 10:16-18. Thereafter, on June 3, the Court issued its Order granting Plaintiff leave to amend but ordering him to allege, among other things, "how and why the ChainRxn video game is an unlawful `copy' of plaintiff's copyright in Boomshine." See Docket No. 56 at 13:16-17. The very next day, a mere seven days after Plaintiff's concession at the hearing that he did not know how Yeo accessed and copied Plaintiff's source code, Plaintiff added the following paragraph to his previous draft of the SAC: Defendant Yeo unlawfully copied Boomshine by (1) improperly accessing and decompiling the Boomshine source code with a decompiling program, or by viewing the Boomshine application via the K2xl.com web site, and (2) then reproducing the Boomshine source code from the original decompiled source code, or by authoring, from the "look and feel" of the Boomshine application available on the K2xl.com web site, a source code designed and intended to result in the ChainRxn application that is substantially similar to Boomshine in its structure, sequence, organization, and/or user interface. SAC ¶ 20 (emphasis added). On their face, these allegations reveal that Plaintiff still has no idea how or even whether Defendant Yeo accessed and copied the code. Plaintiff has merely added conclusory statements in an attempt to overcome the Court's concern about Plaintiff's failure to properly allege access and copying of the Boomshine source code. Miller's newly added allegations do not satisfy the Court's Order and do not satisfy basic federal pleading requirements.

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MOTION TO DISMISS SAC 5:10-CV-00264 (WHA)

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III.

ARGUMENT A. Legal Standard

A party may move to dismiss a claim under Federal Rule of Civil Procedure 12(b)(6) if, from the face of the complaint, the plaintiff fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) requires the Court to take all allegations in Plaintiff's complaint as true, and construe all inferences from them in the light most favorable to it. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). While a plaintiff does not need detailed factual allegations, he must nonetheless "provide the grounds of his `entitle[ment] to relief' . . . [which] requires more than labels and conclusions, and a formulaic recitation of a cause of action will not do . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . ." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). The Court need not credit conclusory allegations, unwarranted deductions of fact, or unreasonable inferences. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Rule 12(b)(6) must be read in conjunction with the pleading requirements of Rule 8(a)(2). Sprewell, 266 F.3d at 988. Rule 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 8(a)(2) requires a "showing, rather than a blanket assertion, of entitlement to relief . . . [w]ithout some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only `fair notice' of the nature of the claim, but also `grounds' on which the claim rests." Twombly, 550 U.S. at 556 n.3. Though, a pleading must contain "only enough facts to state a claim to relief that is plausible on its face," id. at 570, if the "plaintiffs . . . have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed." Id. B. Miller Has Not Alleged Direct Copyright Infringement

"To establish infringement, two elements must be proven: (1) ownership of a valid

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MOTION TO DISMISS SAC 5:10-CV-00264 (WHA)

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copyright, and (2) copying of constituent elements of the work that are original."1 Feist Publ'n, Inc. v. Rural Telephone Serv. Co., Inc., 499 U.S. 340, 361 (1991) citing Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 548 (1985). In order to establish that a work has been "copied," Miller must show "access (by the alleged infringer) and substantial similarity (between the works at issue)." Moore v. Columbia Pictures Indus., Inc., 972 F.2d 939, 941-942 (8th Cir. 1992) citing 3 MELVILLE B. NIMMER, NIMMER ON COPYRIGHT § 13.01[B] (1992). Though not entirely clear, it appears that in paragraph 20, Miller is attempting to allege two disparate theories of how Defendant Yeo directly infringed Plaintiff's copyright in the Boomshine source code. Defendant Yeo is alleged to have infringed the source code copyright: · By improperly accessing and decompiling the Boomshine source code with a decompiling program and then reproducing the Boomshine source code from the original decompiled source code; OR · By viewing the Boomshine application (the game) via the K2xl.com web site and authoring, from the "look and feel" of the Boomshine application available on the K2xl.com web site, a source code designed and intended to result in the ChainRxn application that is substantially similar to Boomshine in its structure, sequence, organization, and/or user interface. As pled, these theories neither comply with the Court's order nor save Plaintiff's case. Instead, Miller offers pure conjecture and speculation rather than real factual allegations as to how Yeo supposedly accessed and copied the code. Moreover, the plausibility of these new theories is significantly undermined by Plaintiff's counsel's representation at the May 27 hearing that he does not "know for certain how [Yeo] accessed the code." Avalos Decl. Ex. A at 10:1617. Despite this concession, made after Miller had known about Yeo's allegedly infringing game for more than a year and after eight months of litigation, a mere seven days later Plaintiff added his conclusory statements in an attempt to breathe life into his case. The Court should not condone this improper tactic and should find that Plaintiff has not adequately alleged direct
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Facebook does not, for purposes of this motion, dispute that Miller obtained a certificate of registration for a "computer file" that he refers to as Boomshine. -4MOTION TO DISMISS SAC 5:10-CV-00264 (WHA)

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copyright infringement. 1. Plaintiff Has Failed To Provide Any Facts Describing How Yeo Accessed And Copied the Source Code.

Miller's conclusion, without any factual support, that Yeo "improperly access[ed] ... the Boomshine source code" (SAC ¶ 20) demonstrates the "conclusory allegations and unwarranted deductions of fact" that the Court must reject.2 Iqbal, 129 S.Ct. at 1949-50. This is especially true in light of Miller's counsel's representation at the May 27 hearing that he does not "know for certain how [Yeo] accessed the code." Avalos Decl. Ex. A at 10:16-17. If Miller is unaware of how Yeo accessed the code, he cannot plausibly allege access in this manner. This is precisely the type of "defendant-unlawfully-harmed-me accusation" rejected by the Supreme Court and, thus, should be rejected. Iqbal at 1949, citing Twombly, 550 U.S. at 555. The plausibility of this new theory also is belied by the absence of any such allegation in the first two iterations of the complaint. Cf. Bradley v. Chiron Corp., 136 F.3d 1317, 1324 (9th Cir. 1998) (dismissing new allegations in favor of former pleading because original pleading "represented a fresher recollection . . . and clearly constituted a comprehensive statement of Plaintiff's allegations and claims"). The only infringement allegation Miller previously (twice) offered was that ChainRxn copies the "look and feel" of Boomshine. At the May hearing, however, Miller's counsel represented that Miller holds a copyright in the code. If he had a basis for asserting that Yeo copied the code, as he now asserts, Miller presumably would have alleged, in his first two complaints, the most basic form of copying to support his claim. He did not. And though he asserts now that Yeo copied the code, Miller offers no factual support for this theory. Importantly, Miller also proffers no facts that would, if proven, establish that Yeo, from a distant location, was able to access Plaintiff's source code. 2. Miller Cannot Maintain An Action Based On Boomshine's "Look and Feel".

Miller also alleges, without specificity, that perhaps Yeo "view[ed] the Boomshine
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Miller does not explain why Yeo's alleged access was improper or what relevance the propriety of his access has to his infringement claim. If the source code were as easily or readily accessible, as Miller now alleges, Yeo's access could not have been improper, in any event. -5MOTION TO DISMISS SAC 5:10-CV-00264 (WHA)

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application via the K2xl.com web site" and then "author[ed], from the `look and feel' of the Boomshine application . . . a source code designed and intended to result in the ChainRxn application that is substantially similar to Boomshine in its structure, sequence, organization, and/or user interface." SAC ¶ 20. As a threshold matter, the SAC is devoid of any factual allegations that Plaintiff actually registered the visual expression of the computer code (the "look and feel") for Boomshine. Thus, Plaintiff has not alleged that the look and feel is a protectible element of his copyright in the computer code. See Miller v. Facebook, Inc., No. C 10-00264 WHA, 2010 WL 2198204, *5 (N.D. Cal. May 28, 2010) ("this order emphasizes that plaintiff's copyright appears to be limited to the source code rather than the audiovisual aspects of Boomshine"). Indeed, the record to date establishes that Plaintiff only "has a copyright on the code." Avalos Decl. Ex. A at 10:1-3; see also Declaration of Theresa A. Sutton in Support of Opposition to Motion for Leave to Amend Complaint (Dkt. No. 47), Ex. A. Consequently, because he did not register the visual elements, Miller lacks standing to assert that Yeo copied the "look and feel" of the Boomshine game. See Kodadek v. MTV Networks, Inc., 152 F.3d 1209, 1211 (9th Cir. 1998) (finding that failure to satisfy registration requirements prevents maintenance of infringement action); see also 37 CFR 202.3(c)(2) (requiring deposit of "materials required under 17 U.S.C. 408 and §202.20"); 37 CFR 202.20(c)(2)(vii)(C) ("Where the application to claim copyright in a computer program includes a specific claim in related computer screen displays, the deposit . . . shall consist of: (1) Visual reproductions of the copyrightable expression in the form of printouts, photographs, or drawings"). Furthermore, absent access to and copying of the source code, Miller is merely complaining that Yeo copied the idea for Boomshine. But copyright law does not protect the idea for a game. Frybarger v. Int'l Bus. Machines Corp., 812 F.2d 525 (9th Cir. 1987). According to the SAC, Boomshine comprises floating circles that expand when clicked and cause a chain reaction of further expanding circles. SAC ¶ 10. Consequently, any similarities between Boomshine and ChainRxn are likely a result of Yeo implementing this basic idea for the game. In addition, the Court need not credit the unsupported conclusion that Yeo "view[ed] the Boomshine application." SAC ¶ 20. The internet is a big place, and the fact that Boomshine is out -6MOTION TO DISMISS SAC 5:10-CV-00264 (WHA)

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there does not necessarily mean Yeo found it. Plaintiff does not satisfy his pleading requirements by asserting "a bare possibility . . . inferred through speculation or conjecture" that Yeo viewed the Boomshine game. Stewart v. Wachowski, 574 F. Supp. 2d 1074, 1089 (C.D. Cal. 2005) citing 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT, § 13.02[A]. Finally, the Court should reject Plaintiff's implausible conclusion that merely by looking at the game, Yeo was somehow able to write code that is
"substantially

similar" to the Boomshine

code. SAC ¶ 20. Plaintiff fails to provide any factual explanation for how Defendant Yeo, sitting in his dorm room at Cornell, somehow was able to write source code that was nearly identical to Plaintiff's source code just from looking at the display. This is akin to claiming that by merely looking at a book cover, an alleged infringer was able to write the same novel. Such a contention defies logic and fails to "nudge [Plaintiff's] claims across the line from conceivable to plausible." Twombly, 550 U.S. at 570. Accordingly, this theory cannot save Plaintiff's case. IV. CONCLUSION The Court has previously stated that it would not allow any further amendments to the complaint. Despite this warning, Plaintiff has failed to abide by the Court's previous Order and has not adequately alleged direct copyright infringement by Defendant Yeo. Without direct infringement, there can be no contributory infringement by Facebook. Accordingly, Facebook respectfully requests that the Court dismiss the Second Amended Complaint with prejudice. Dated: June 21, 2010 ORRICK, HERRINGTON & SUTCLIFFE LLP /s/ Thomas J. Gray Thomas J. Gray Attorneys for Defendant FACEBOOK, INC.

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MOTION TO DISMISS SAC 5:10-CV-00264 (WHA)