Jinni Tech Ltd et al v. Red.com Inc et al

Filing 124

ORDER granting Defendants' 119 Third Motion for Summary Judgment. Signed by Judge James L. Robart. (LH)

Case 2:17-cv-00217-JLR Document 124 Filed 10/18/21 Page 1 of 17

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9

JINNI TECH, LTD., et al.,

10
11

v.

12

CASE NO. C17-0217JLR
ORDER GRANTING
DEFENDANTS’ THIRD MOTION
FOR SUMMARY JUDGMENT

Plaintiffs,

RED.COM, INC., et al.,

13

Defendants.

14

I.

15
16

INTRODUCTION

Before the court is Defendants RED.com, Inc. and RED.com, LLC’s (collectively,

17

“RED”) third motion for summary judgment. (Mot. (Dkt. # 119); see also Reply (Dkt.

18

# 123).) Plaintiffs Jinni Tech, Ltd. (“Jinni Tech”) and Bruce Royce (collectively,

19

“Plaintiffs”) oppose RED’s motion. (Resp. (Dkt. # 120).) The court has considered the

20

motion, all submissions filed in support of and in opposition to the motion, the relevant

21

//

22

//
ORDER - 1

Case 2:17-cv-00217-JLR Document 124 Filed 10/18/21 Page 2 of 17

1

portions of the record, and the applicable law. Being fully advised, 1 the court GRANTS

2

RED’s third motion for summary judgment.
II.

3
4

BACKGROUND

This case returns to the court on remand from the Ninth Circuit Court of Appeals.

5

(See 9th Cir. Mem. (Dkt. # 112); Mandate (Dkt. # 115).) Below, the court sets forth the

6

factual and procedural background relevant to the instant motion.

7

A.

Factual Background

8

1.

The Mini-Mag and JinniMag

9

RED manufactures high-end digital cameras used to create motion pictures. (See

10

11/14/19 Land Decl. (Dkt. # 80) ¶ 2.) Its president is Jarred Land. (Id. ¶ 1.) RED claims

11

to produce an “ecosystem comprised of everything from the image capture at the sensors

12

through the camera and its processes to generate and output compressed RAW image

13

files to storage media.” (See id. ¶ 2.) As part of this “ecosystem,” RED produces

14

solid-state drives (“SSDs”) that RED markets as “Mini-Mags.” (Id.) The Mini-Mags

15

store the camera’s digitally compressed RAW recordings until they can be downloaded

16

onto computers for movie post-production. (See id.; 11/14/19 Rankin Decl. (Dkt. # 81)

17

¶ 2, Ex. 1 (“RED Dep.”) at 103:8-104:1.) RED claims that its cameras are designed such

18

that without RED firmware in a connected SSD (such as a Mini-Mag), the RED camera’s

19

operating software system cannot properly communicate with a memory card and thus

20

the system will not function. (See RED Dep. at 42:16-44:8; 11/14/19 Land Decl. ¶ 3.)

21
22

1

Neither party requests oral argument (see Mot. at 1, Resp. at 1), and the court finds oral
argument unnecessary to its disposition of the motion, see Local Rules W.D. Wash. LCR 7(b)(4).
ORDER - 2

Case 2:17-cv-00217-JLR Document 124 Filed 10/18/21 Page 3 of 17

1

RED further asserts that its memory devices, including the Mini-Mag, are covered by the

2

claims of U.S Patent No. 9,596,385. (11/14/19 Land Decl. ¶ 7; see also 12/13/19 Land

3

Decl. (Dkt. # 88) ¶ 3 (stating RED filed its patent application in 2016).)

4

In 2016, Mr. Royce’s company, Jinni Tech, launched for sale an SSD designed for

5

use with RED’s cameras that it called the “JinniMag.” (See 12/06/19 Royce Decl. (Dkt.

6

# 86) ¶ 2.) On July 31, 2016, Jinni Tech posted a “coming soon” message on the “RED

7

Scarlet-W Facebook group” in which it described the JinniMags as “Affordable, Fully

8

Compatible RED Mags.” (See FAC (Dkt. # 10) ¶ 67; see also 11/14/19 Rankin Decl. ¶ 7,

9

Ex. 6 (“Forum Posts”) at JT001350 (quoting “coming soon” message).) Jinni Tech

10

claims that the JinniMag was an attempt to “break R[ED]’s monopoly on memory storage

11

devices for RED cameras.” (See Resp. to 1st MSJ (Dkt. # 85) at 2.) According to Jinni

12

Tech, RED-branded storage devices “have the same standard features of a generic SSD

13

memory device.” (12/06/19 Royce Decl. ¶ 3.) Jinni Tech asserts that RED forces its

14

users to buy RED’s storage devices containing generic SSD cards at premium prices by

15

designing its system to work only with RED-branded SSDs, “allowing R[ED] to price

16

gauge [sic] their customers in the process.” (See id.)

17

2.

18

Soon after Jinni Tech posted its “coming soon” message, the JinniMag became a

19

topic of conversation in the online forums on Reduser.net, a “social media platform” on

20

which RED users discuss RED equipment. (See 6/16/17 Land Decl. (Dkt. # 17) ¶ 4.)

21

Landmine Media, Inc. (“Landmine”), a Colorado corporation of which Jarred Land is a

22

part owner, operates Reduser.net. (See id.) On July 31, 2016, a Reduser.net user created
ORDER - 3

Mr. Land’s Online Statements

Case 2:17-cv-00217-JLR Document 124 Filed 10/18/21 Page 4 of 17

1

a thread titled “Cheap third party R[ED] MiniMag replacement – JinniMag?” which

2

quoted Jinni Tech’s “coming soon” message and in which several users made comments

3

or asked questions about the JinniMag. (See Forum Posts at JT001350-53.)

4

On July 31, 2016, Mr. Land made the following post on the Reduser.net thread:

5

Guys . . . I can’t tell you how much this pisses me off. Not from a business
perspective, but as a patent holder and creator.

6
7
8
9
10
11
12
13
14
15

Like all of you, we spend a lot of time money and effort creating what we
do.
For our media, we developed our own IP and Firmware and spent millions
of dollars testing, certifying and [running quality control (“QC”) on] every
media card that we ship. Its [sic] why we have significantly less card errors
than other companies using generic media . . . even reputable generic media.
Media is one of the most critical components of the entire system and the
way we write to a card is very different than a normal SSD is programmed
for.
For some random company to hack and duplicate our IP and our firmware
(which is the only way they could do this) is exactly like someone stealing
your films and calling them their own and selling them to others. It goes
against everything I stand for.

17

I don’t know where this company is from. I assume the UK cover is just
bullshit. Someone said China but I really hope this is not the case as China
has made such significant improvements over the last decade turning around
their attitude towards Copyright infringement, Trademark violations, and IP
theft (which it appears this company has broken all three in one swoop)[.]

18

I am shocked some of you are here are [sic] actually endorsing this.

19

I will shut RED completely down . . . I am not kidding . . . [i]f stealing each
other[’]s shit suddenly is deemed acceptable.

16

20
21

It’s not a world I want to work or create or live in.

22
ORDER - 4

Case 2:17-cv-00217-JLR Document 124 Filed 10/18/21 Page 5 of 17

1

(Forum Posts at JT001357-58 (the “July 31 Reduser.net Comment”).) On August 1,

2

2016, Mr. Land made a second post in response to another user’s comment:

3

You don’t get it. This isn’t about the money or even about media.

4

We invented something. Someone is saying they have stole it. And you are
sitting there telling everyone that is ok.

5
6
7
8
9

It is the same as if you saved up or borrowed $10,000,000 and went and wrote
and directed and shot your film. you [sic] edit it together and finish it and
put it up on Itunes [sic] for $9.99 to get your money back.
But someone from china [sic] looks at your film and likes it and says “Fuck
that guy charging $9.99 for his film on Itunes. I don’t think people should
pay that much. Lets just download this guys film, steal it, change the opening
credits with our logo and reupload it on Itunes and only charge $1.00.[”]

10

That’s not right.

11

Lawyers will deal with these guys doing this. . . . But it is you guys that think
that this is OK that have me way way way more pissed off.

12
13
14
15
16
17
18

(Forum Posts at JT001364-65 (the “August 1 Reduser.net Comment”).)
A Facebook user started a similar thread on Facebook on July 31, 2016. (11/14/19
Rankin Decl. ¶ 8, Ex. 7 (“Facebook Posts”).) On that day, Mr. Land posted on the thread
the following:
This is not legit . . . not certified . . . not endorsed and will never be because
it’s bullshit. Even if this was real there are too many inaccuracies and
violations going on here to list but I figure you all are smart enough to see
through this.

19

(Facebook Posts at JT001453 (the “July 31 Facebook Comment”) (ellipses in original).)

20

Plaintiffs allege that Mr. Land’s statements “caused serious damage to Mr.

21

Royce’s professional reputation” and caused Mr. Royce and his family “serious

22

emotional distress, anxiety, and stress, resulting in harm to Mr. Royce’s emotional and

ORDER - 5

Case 2:17-cv-00217-JLR Document 124 Filed 10/18/21 Page 6 of 17

1

physical health, including severe physical pain and a sleep disorder.” (FAC ¶¶ 97-98.)

2

They further allege that the statements “impugned the quality and/or integrity of Jinni

3

Tech’s products, which caused customers not to deal with Jinni Tech.” (Id. ¶ 129.)

4

B.

5

Procedural Background
On April 9, 2020, the court granted in part and denied in part RED’s first motion

6

for summary judgment. (4/9/20 Order (Dkt. # 90).) In relevant part, the court denied

7

RED’s motion with respect to Plaintiffs’ tortious interference claim and certain Lanham

8

Act and Washington Consumer Protection Act claims, but granted summary judgment on

9

Plaintiffs’ remaining claims, including their claims for defamation and trade libel. (See

10

generally id.) Shortly thereafter, the court amended its order in response to RED’s

11

motion for clarification. (4/20/20 Order (Dkt. # 93).) On August 28, 2020, the court

12

granted RED’s second summary judgment motion and dismissed the claims that had

13

survived RED’s first motion. (See generally 8/28/20 Order (Dkt. # 104).)

14

Plaintiffs appealed the court’s summary judgment orders. (See Not. of Appeal

15

(Dkt. # 105).) On July 19, 2021, the Ninth Circuit Court of Appeals vacated in part and

16

affirmed in part the court’s grant of summary judgment to RED and remanded this matter

17

for further proceedings regarding Plaintiffs’ defamation and trade libel claims. (See

18

generally 9th Cir. Mem.) The Ninth Circuit observed:

19
20
21
22

In granting summary judgment in RED’s favor on these claims with respect
to statements concerning unlawful or criminal behavior, the district court
relied solely on the ground that no such statements were made by [Mr.] Land.
In doing so, however, the district court appears to have inadvertently
overlooked [Mr.] Land’s statements and instead addressed only comments
posted by RED customers and fans.

ORDER - 6

Case 2:17-cv-00217-JLR Document 124 Filed 10/18/21 Page 7 of 17

1

(Id. at 2.) Accordingly, the Ninth Circuit vacated the court’s summary judgment order as

2

to Plaintiffs’ defamation and trade libel claims and remanded the matter to “allow [the

3

court] to consider whether [Mr.] Land’s comments constitute defamation per se [as to

4

Mr. Royce] or trade libel [as to Jinni Tech].” (Id.) The Ninth Circuit affirmed the court’s

5

grant of summary judgment as to all of Plaintiffs’ other claims. (Id. at 3.)

6

III.

7

ANALYSIS

At the outset, Plaintiffs contend that the court should deny RED’s third motion for

8

summary judgment because it is an “untimely and unsupported” motion for

9

reconsideration under Local Civil Rule 7(h). (Resp. at 5 (citing Local Rules W.D. Wash.

10

LCR 7(h)).) The court disagrees. After the Ninth Circuit issued its mandate, the court

11

ordered the parties to file “a joint status report proposing how the court should proceed

12

on remand” and instructed them to “outline their disparate suggestions in the joint status

13

report” if they did not agree on a “unified approach.” (8/11/21 Order (Dkt. # 116) at 2.)

14

In their joint status report, the parties proposed that RED would “move for summary

15

judgment on the limited issues that remain on remand.” (JSR (Dkt. # 117).) Plaintiffs

16

did not object to this proposal or outline an alternative approach for resolving the

17

remaining issues. (See id.) It is too late now for Plaintiffs to protest that RED’s motion

18

is improper. Accordingly, the court proceeds to consider RED’s third motion for

19

summary judgment.

20

A.

21
22

Standard of Review
Summary judgment is appropriate if the evidence viewed in the light most

favorable to the non-moving party shows “that there is no genuine dispute as to any
ORDER - 7

Case 2:17-cv-00217-JLR Document 124 Filed 10/18/21 Page 8 of 17

1

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

2

56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Beaver v. Tarsadia Hotels,

3

816 F.3d 1170, 1177 (9th Cir. 2016). A fact is “material” if it might affect the outcome

4

of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute

5

is “‘genuine’ only if there is sufficient evidence for a reasonable fact finder to find for the

6

non-moving party.” Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001)

7

(citing Anderson, 477 U.S. at 248-49).

8

The moving party bears the initial burden of showing there is no genuine dispute

9

of material fact and that it is entitled to prevail as a matter of law. Celotex, 477 U.S. at

10

323. If the moving party does not bear the ultimate burden of persuasion at trial, it can

11

show the absence of such a dispute in two ways: (1) by producing evidence negating an

12

essential element of the nonmoving party’s case, or (2) by showing that the nonmoving

13

party lacks evidence of an essential element of its claim or defense. Nissan Fire &

14

Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving party

15

meets its burden of production, the burden then shifts to the nonmoving party to identify

16

specific facts from which a factfinder could reasonably find in the nonmoving party’s

17

favor. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.

18

B.

19

Defamation and Trade Libel
The court first decides the parties’ dispute regarding which statements are at issue

20

following the Ninth Circuit’s order on remand before analyzing whether the statements

21

support a claim for defamation per se or for trade libel.

22
ORDER - 8

Case 2:17-cv-00217-JLR Document 124 Filed 10/18/21 Page 9 of 17

1

1.

Statements at Issue

2

RED moves for summary judgment on Plaintiffs’ defamation and trade libel

3

claims based on the July 31 and August 1 Reduser.net Comments. (See, e.g., Mot. at 2

4

(stating belief that Ninth Circuit’s order “applies to two discrete statements by Mr.

5

Land”); id. at 3-4 (quoting only the July 31 and August 1 Reduser.net Comments).)

6

Plaintiffs, however, state that they base their claims on the July 31 Reduser.net Comment

7

and the July 31 Facebook Comment. (See Resp. at 2 (identifying only these two

8

statements).) In reply, RED protests that Plaintiffs are inappropriately attempting to

9

expand the scope of the claims remaining in the case contrary to the Ninth Circuit’s

10

limited remand, which directed the court to consider whether Mr. Land’s “statements

11

concerning unlawful or criminal behavior” “constitute defamation per se or trade libel.”

12

(Reply at 2-3 (quoting 9th Cir. Mem. at 2).)

13

The court agrees with RED. In response to RED’s first motion for summary

14

judgment, Plaintiffs identified only the July 31 Reduser.net Comment as a basis for their

15

defamation per se claim. (See Resp. to 1st MSJ (Dkt. # 85) at 2-3 (making no mention of

16

a Facebook post).) Thus, by now raising Mr. Land’s Facebook comment as an additional

17

basis for a finding of defamation or trade libel, Plaintiffs improperly attempt to expand

18

the scope of their remaining claims beyond those considered by the Ninth Circuit. In

19

addition, Plaintiffs only argue in their response that Mr. Land’s July 2016 comments

20

were defamatory per se and do not respond to RED’s arguments regarding the August 1

21

Reduser.net Comment. (See Resp. at 7.) Accordingly, the court proceeds to consider

22

only Mr. Land’s July 31 Reduser.net Comment in its analysis.
ORDER - 9

Case 2:17-cv-00217-JLR Document 124 Filed 10/18/21 Page 10 of 17

1

2.

Legal Standards

2

Under Washington law, to avoid summary judgment on a defamation claim, a

3

plaintiff must make a prima facie showing of facts that would raise a genuine issue of

4

material fact as to each of the following elements: (1) falsity, (2) an unprivileged

5

communication, (3) fault, and (4) that the communication proximately caused damages.

6

Mark v. Seattle Times, 635 P.2d 1081, 1089 (Wash. 1981); see also Mohr v. Grant, 108

7

P.3d 768, 776 (Wash. 2005). The prima facie case must consist of specific, material

8

facts, rather than conclusory statements, that would allow a jury to find that each element

9

of defamation exists. LaMon v. Butler, 770 P.2d 1027, 1029 (Wash. 1989).

10

A statement is defamatory per se if it “(1) exposes a living person to hatred,

11

contempt, ridicule or obloquy, to deprive him of the benefit of public confidence or social

12

intercourse, or (2) injures him in his business, trade, profession or office.” Caruso v.

13

Local Union No. 690 of Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers

14

of Am., 670 P.2d 240, 245 (Wash. 1983). If the plaintiff shows the defendant’s

15

statements were sufficiently injurious to constitute defamation per se the court assumes

16

damage; the plaintiff need not prove actual damages; and the plaintiff may seek general

17

damages for “mental distress, anguish, humiliation, and loss of enjoyment of life.” Davis

18

v. Fred’s Appliance, Inc., 287 P.3d 51, 61 (Wash. Ct. App. 2012) (citing Haueter v.

19

Cowles Publ’g Co., 811 P.2d 231, 235 (Wash. Ct. App. 1991)); Maison de France, Ltd. v.

20

Mais Oui!, Inc., 108 P.3d 787, 44-45 (Wash. Ct. App. 2005).

21
22

The tort of trade libel is “substantively similar to defamation.” Auvil v. CBS 60
Minutes, 67 F.3d 816, 820 (9th Cir. 1995). “To establish a claim of product
ORDER - 10

Case 2:17-cv-00217-JLR Document 124 Filed 10/18/21 Page 11 of 17

1

disparagement, also known as trade libel, a plaintiff must allege that the defendant

2

published a knowingly false statement harmful to the interests of another and intended

3

such publication to harm the plaintiff’s pecuniary interests.” Id. (citing Restatement

4

(Second) of Torts § 623A (Am. Law Inst. 1977)).

5

RED contends that it is entitled to summary judgment on Plaintiffs’ defamation

6

and trade libel claims because Mr. Land’s statements (1) are not actionable false

7

assertions of fact but rather were speculation or opinions (Mot. at 6-10); (2) do not assert

8

that Mr. Royce was a criminal or committed illegal conduct and therefore are not

9

defamatory per se (id. at 10-12); (3) are protected by the common interest privilege (id. at

10

12-14); and (4) are substantially true (id. at 14-16). Plaintiffs counter that Mr. Land’s

11

statements are defamatory per se because they (1) accuse Plaintiffs of theft of intellectual

12

property (Resp. at 6-7); (2) are not unactionable opinions (id. at 7-8); (3) are not

13

protected by the common interest privilege (id. at 8-10); and (4) are not substantially true

14

because there is a question of fact as to whether Plaintiffs infringed RED’s intellectual

15

property (id. at 10-11). 2

16

The court concludes that Mr. Land’s statements are not actionable assertions of

17

fact as a matter of law. Moreover, even if the statements were assertions of fact, the court

18

//

19

//

20
21
22

2

Inexplicably, Plaintiffs also repeatedly accuse Mr. Land of stating that the JinniMag is a
“pirate” version of RED’s device. (See, e.g., Resp. at 6, 7, 9.) None of Mr. Land’s comments,
however, include the word “pirate.” (See supra at 4-5.)

ORDER - 11

Case 2:17-cv-00217-JLR Document 124 Filed 10/18/21 Page 12 of 17

1

concludes there is no genuine dispute of fact that they were substantially true.

2

Accordingly, the court GRANTS RED’s motion for summary judgment. 3

3

3.

Mr. Land’s Statements Are Not Actionable Assertions of Fact

4

“Before the truth or falsity of an allegedly defamatory statement can be assessed, a

5

plaintiff must prove that the words constituted a statement of fact, not an opinion.” Robel

6

v. Roundup Corp., 59 P.3d 611, 621 (Wash. 2002). “Whether the allegedly defamatory

7

words were intended as a statement of fact or an expression of opinion is a threshold

8

question of law for the court.” Id. at 622. Courts consider the “totality of the

9

circumstances” to determine whether a statement is actionable. Dunlap v. Wayne, 716

10

P.2d 842, 848 (Wash. 1986). These circumstances include “(1) the medium and context

11

in which the statement was published, (2) the audience to whom it was published, and (3)

12

whether the statement implies undisclosed facts.” Dunlap, 716 P.2d at 848.

13

Regarding the first factor, the Dunlap court noted statements expressing opinion

14

are found more often in certain contexts. Dunlap, 716 P.2d at 848. Thus, “[t]he court

15

should consider the entire communication and note whether the speaker qualified the

16

defamatory statement with cautionary ‘terms of apparency.’” Id. (quoting Info. Control

17

Corp. v. Genesis One Comput. Corp., 611 F.2d 781, 784 (9th Cir. 1980)). With respect

18

to the second factor, audience expectations are “paramount.” Id. Accordingly, “[t]he

19

court should consider whether the audience expected the speaker to use exaggeration,

20
21
22

3

Because the court grants RED’s motion on these two grounds, it does not address the
parties’ arguments regarding the common interest privilege and whether the comments were
defamatory per se.
ORDER - 12

Case 2:17-cv-00217-JLR Document 124 Filed 10/18/21 Page 13 of 17

1

rhetoric, or hyperbole.” Id. “The third and perhaps most crucial factor to consider is

2

whether the statement of opinion implies that undisclosed facts support it.” Id.

3

“Arguments for actionability disappear when the audience members know the facts

4

underlying an assertion and can judge the truthfulness of the allegedly defamatory

5

statement themselves.” Id.

6

Considering the totality of the circumstances, the court concludes that Mr. Land’s

7

July 31 Reduser.net Comment, taken as a whole, is not an actionable assertion of fact.

8

First, the medium and context indicate that Mr. Land’s statement was an expression of

9

opinion rather than fact. See id. Mr. Land made his comment on an Internet discussion

10

forum on which RED users discussed RED products. Washington courts recognize that

11

the Internet is a medium where statements expressing opinions are often found. See, e.g.,

12

Life Designs Ranch, Inc. v. Sommer, 364 P.3d 129, 136 (Wash. Ct. App. 2015). In

13

addition, Mr. Land used “cautionary ‘terms of apparency’” when he wrote that “it

14

appears” that Jinni Tech had committed copyright infringement, trademark violations,

15

and theft of intellectual property. Dunlap, 716 P.2d at 848; (July 31 Reduser.net

16

Comment (emphasis added)).

17

The second Dunlap factor also supports a finding that Mr. Land’s statement is

18

nonactionable opinion. The audience for Mr. Land’s statements—members of the RED

19

discussion forum who knew that Mr. Land was the president of RED—would have

20

expected Mr. Land to “use exaggeration, rhetoric, or hyperbole” in reacting to news of a

21

competitor who had announced a product that was both “fully compatible” and more

22
ORDER - 13

Case 2:17-cv-00217-JLR Document 124 Filed 10/18/21 Page 14 of 17

1

“affordable” than RED’s MiniMag. Dunlap, 716 P.2d at 848; (see Forum Posts at

2

JT001350).

3

Finally, the court concludes that Mr. Land’s statement, viewed in context, does not

4

imply the existence of undisclosed facts. Dunlap, 716 P.2d at 848. Mr. Land’s audience

5

knew that Mr. Land made his statement on the very same day that Jinni Tech made its

6

“coming soon” announcement. (See FAC ¶ 67; see generally Forum Posts.) Moreover,

7

there was no actual JinniMag product available that Mr. Land could have inspected

8

before July 31, 2016, “as Jinni Tech had not yet delivered even one single unit that Mr.

9

Land or RED could have evaluated.” (See 11/14/19 Rankin Decl. ¶ 9, Ex. 8 (6/29/17

10

Royce Decl.) ¶ 9.) Indeed, Mr. Royce acknowledged in deposition testimony that Mr.

11

Land “had no facts” about the JinniMag and thus was “making speculations and

12

assumptions.” (See id. ¶ 5, Ex. 4 (“Royce Dep.”) at 142:3-21); see also Gardner v.

13

Martino, 563 F.3d 981, 988 (9th Cir. 2009) (“When it is clear that the allegedly

14

defamatory statement is ‘speculation on the basis of the limited facts available’ it

15

represents a nonactionable personal interpretation of the facts.”). Accordingly, the court

16

concludes that Mr. Land’s July 31 Reduser.net Comment is not, as a matter of law, an

17

actionable statement of fact. Because Plaintiffs cannot prove this key element of their

18

//

19

//

20

//

21

//

22

//
ORDER - 14

Case 2:17-cv-00217-JLR Document 124 Filed 10/18/21 Page 15 of 17

1

defamation and trade libel claims, the court GRANTS RED’s motion for summary

2

judgment. 4

3

4.

Mr. Land’s Statement Was “Substantially True”

4

Even if Mr. Land’s statement were an assertion of fact, the court concludes that

5

Plaintiffs have not met their burden to show that there is a genuine issue of material fact

6

as to whether the statement is “substantially true.” Washington courts do “not require a

7

defamation defendant to prove the literal truth of every claimed defamatory statement.”

8

Mohr, 108 P.3d at 775. Rather, “[a] defendant need only show that the statement is

9

substantially true or that the gist of the story, the portion that carries the ‘sting,’ is true.”

10

Id. (quoting Mark, 635 P.2d at 1092). “The ‘sting’ of a report is defined as the gist or

11

substance of a report when considered as a whole.” Id. (quoting Herron v. King

12

Broadcasting, 776 P.2d 98, 102 (Wash. 1989)). “Where a report contains a mixture of

13

true and false statements, a false statement (or statements) affects the ‘sting’ of a report

14

only when ‘significantly greater opprobrium’ results from the report containing the

15

falsehood than would result from the report without the falsehood.” Herron, 776 P.2d at

16

102.

17
18

RED argues that Mr. Land’s statements relating to “copyright infringement,
trademark violations, . . . IP theft,” and “stealing” are substantially true because Mr.

19
20
21
22

4

The court further concludes that its analysis of the Dunlap factors applies with equal
force to the August 1 Reduser.net Comment and the July 31 Facebook Comment and, as a result,
neither is an actionable assertion of fact as a matter of law. Thus, even if those comments were
within the scope of the court’s analysis, summary judgment on any defamation or trade libel
claim arising from the comments would be appropriate.
ORDER - 15

Case 2:17-cv-00217-JLR Document 124 Filed 10/18/21 Page 16 of 17

1

Royce admits that he inspected RED’s Mini-Mag and copied certain character strings

2

when he created the JinniMag. (Mot. at 7; see also Royce Dep. at 69:1-73:4 (describing

3

his inspection of the Mini-Mag and development of the JinniMag); id. at 78:2-7

4

(admitting he copied characters from the Mini-Mag in creating the JinniMag); id. at

5

116:18-20 (same); id. at 178:5-179:18 (same).) Plaintiffs counter that there is a disputed

6

issue of fact as to whether they infringed RED’s intellectual property. (Resp. at 10-11.)

7

Although there may be a dispute of fact regarding whether Jinni Tech and Mr.

8

Royce actionably infringed RED’s intellectual property, the court nevertheless agrees

9

with RED that there is no genuine dispute of fact that Mr. Royce inspected the JinniMag

10

and “reverse-engineered” it by copying a series of authentication characters without

11

authorization from RED. Thus, the “sting” of the statement—that Plaintiffs “hacked” and

12

“duplicated” the MiniMag—is substantially true, and Plaintiffs cannot prove that Mr.

13

Royce’s statement was false.

14

In sum, Mr. Land’s July 31 Reduser.net Comment is not an actionable assertion of

15

fact; and even if it was, there is no material issue of fact that it was substantially true.

16

Accordingly, the court GRANTS RED’s motion for summary judgment on Plaintiffs’

17

defamation and trade libel claims.

18

//

19

//

20

//

21

//

22

//
ORDER - 16

Case 2:17-cv-00217-JLR Document 124 Filed 10/18/21 Page 17 of 17

IV.

1
2
3
4

CONCLUSION

For the foregoing reasons, the court GRANTS RED’s third motion for summary
judgment (Dkt. # 119).
Dated this 18th day of October, 2021.

5

A

6

JAMES L. ROBART
United States District Judge

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
ORDER - 17