Als Scan, Inc. v. Cloudflare, Inc. et al
Court Docket Sheet

Central District of California

2:2016-cv-05051 (cacd)

STANDING ORDER RE FINAL PRE-TRIAL CONFERENCE FOR CIVIL JURY TRIALS BEFORE JUDGE GEORGE H. WU: (See order for details).

Case 2:16-cv-05051-GW-AFM Document 8 Filed 07/21/16 Page 1 of 10 Page ID #:49 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 ALS Scan, Inc.,) No. CV 16-5051-GW(AFMx)) 11) Standing Order Re Final Pre-Trial Plaintiff(s),) Conferences for Civil Jury Trials Before 12) Judge George H. Wu v.) 13) Cloudflare, Inc., et al.,) 14) Defendant(s).) 15)) 16 17 1. You are instructed to read and to follow (unless otherwise superseded herein) the 18 Central District of California Local Rules (henceforth "Local Rules") 16-1 through 16-15 regarding 19 pre-trial requirements. 20 21 2. At least twenty-one (21) days prior to the Final Pre-Trial Conference (henceforth 22 "FPTC"), counsel for each party and pro per litigants1 must have prepared and exchanged with 23 each other all of the following: 24 1 While the Court does not expect pro per litigants to have any legal training or experience, most of the 25 requirements in this Order either do not require legal knowledge per se or are matters which the pro per litigant will have to address anyway at the trial (e.g., knowing what witnesses and exhibits he or she will be presenting, selecting 26 the jury instructions that he or she will be asking the Court to read to the jury, etc.). This Court believes that it would be as helpful for pro per litigants, as it is for attorneys, to address those matters prior to trial in order for all of the trial 27 participants to be better prepared and the trial to proceed more smoothly. Therefore, contrary to Local Rule 16-12(c), this Court will require pro per litigants, to the extent they are able, to participate in meeting the pre-trial conference 28 obligations for civil jury trials delineated in this Order. Case 2:16-cv-05051-GW-AFM Document 8 Filed 07/21/16 Page 2 of 10 Page ID #:50 1 a) a list of pre-marked exhibits which that party intends to use at trial, 2 b) copies of the exhibits which are on the list (except that exhibits previously 2 provided during discovery and Bates-stamped need not be produced again), 3 c) a list of witnesses which that litigant intends to call at trial, 4 d) marked deposition transcripts as required by paragraph 7, below, e) an initial version of the short statement of the case to be read to the jury 5 panel, 6 f) proposed jury instructions, and 7 g) any verdict forms that a party wishes to utilize. 8 3. At least ten (10) days before the FPTC, all counsel and pro se litigants will meet and 9 confer in person so that at least five (5) days before the FPTC, the parties will have filed and 10 provided to the Court "joint" versions of the following: 11 a) joint statement of the case, 12 b) joint exhibit list (with any concomitant objections), 13 c) joint witness list, d) joint proposed jury instructions, 14 e) joint special verdict forms (if any), and 15 f) stipulation(s) of facts as per Local Rule 16-2.2. 16 By "joint", the Court means that the materials will be contained in a single document signed 17 by all counsel and pro per litigants. In the preparation of said document, no party shall have the 18 right to veto (i.e., exclude from the document) material proffered by any other party. However, 19 areas of dispute or other differences shall be noted. For example, as to the joint statement of the 20 case, the sections which are agreed upon by all parties would be in regular type while the portions 21 submitted by one litigant and contested by one or more of the others would be denoted by 22 different fonts, italicized, underlined, or in bold. Further, where there are disagreements, the 23 bases for each dispute will be noted in a brief footnote to the relevant section of the joint 24 submission in question. 25 26 27 2 Rebuttal exhibits need not be placed on the list. However, actual rebuttal exhibits are (like hen’s teeth) extremely rare. If the court determines that an undisclosed exhibit is not in fact a rebuttal exhibit, said item will be 28 excluded from the trial. 2 Case 2:16-cv-05051-GW-AFM Document 8 Filed 07/21/16 Page 3 of 10 Page ID #:51 1 4. As to the joint exhibit list, the parties are to employ the following format:3 2 3 Exhibit Party Description If objection(s), briefly state Response to objection(s) Number Offering the ground(s) 4 5 6 7 If all the parties stipulate to the admissibility of an exhibit or if there are no objections to it 8 on the exhibit list, it may be used by either side at any point in the trial after jury selection including 9 the opening statements and closing arguments. 10 Any and all objections to an exhibit must be included in the joint exhibit list. Any objections 11 not so included will be deemed by this Court to have been waived. Do not submit blanket or 12 boilerplate objections as they will be disregarded and overruled. 13 In numbering and marking the exhibits, the parties are to follow Local Rules 16-6 and 26-3. 14 15 5. As to each witness on the joint witness list, the parties shall state the name of the 16 witness, the party(s) calling the witness, and provide an estimate of the amounts of time for the 17 witness’s direct and cross-examinations. If there is an objection to the witness’s being called at 18 trial, the opposing party must file a motion in limine to resolve the dispute in advance of trial or the 19 objection will be deemed to have been waived, unless the Court finds that the basis for the 20 objection arose after the FPTC. 21 22 6. The proposed jury instructions are to be placed in the order in which they are to be 23 read to the jury and printed in booklet form (i.e., fitting multiple instructions sequentially on each 24 page). Normally, there should be: 1) a "Preliminary Instructions" section with items such as Ninth 25 Circuit Manual of Model Jury Instructions-Civil (henceforth "9th Cir. Jury Instructions") Nos. 1.1C, 26 27 3 In order to fit all of the necessary information into the limited spaces on the form, for this document the parties 28 can utilize as low as 9 point font, if they so desire. 3 Case 2:16-cv-05051-GW-AFM Document 8 Filed 07/21/16 Page 4 of 10 Page ID #:52 1 1.6, 1.7, 1.9 through 1.11, etc.4; 2) a "Cause(s) of Action/Affirmative Defense(s)" section which 2 delineates the elements of each claim and defense; 3) a "Damages" section which describes the 3 types of damages (e.g., economic, non-economic, future, punitive, etc.), and 4) a "Closing 4 Instructions" section with items such as 9th Cir. Jury Instructions Nos. 3.1 through 3.4. 5 This Court has a preference for established/published jury instructions (such as the 9th Cir. 6 Jury Instructions) over those specially prepared by counsel in the instant case because the former 7 have usually survived some appellate review. As to the established form jury instructions, where 8 the claim arises under federal law, counsel should initially refer to the applicable provisions in the 9 9th Cir. Jury Instructions. Where the claim is based on California law, either the Judicial Council 10 of California Civil Jury Instructions (henceforth ("CACI") or California Jury Instructions-Civil 11 (henceforth "BAJI") may be used. The Court has no objection to the parties’ selection of various 12 items from the different publications (i.e., mixing and matching) so long as each instruction is 13 identified by its source and there are no overlaps or discrepancies. Where there is no applicable 14 form instruction on a particular matter and counsel are drafting specific language, they are to 15 include reference to the statutory, regulatory or case law which supports that language. 16 The most recent version of any form instruction is to be utilized. Any blanks or spaces are 17 to be filled in by the parties. Modifications of established jury instructions from the various sources 18 must specifically indicate the change(s) made to the original form instruction and cite to the 19 authority supporting the modification(s). 20 In addition to the joint proposed jury instruction booklet, the parties are to provide the court 21 with a table listing each proposed instruction and the following information (at the time of the 22 FPTC, only the first two columns need to be filled out): 23 24 25 26 4 The Court will usually give the jury an initial set of instructions (henceforth "Initial Set"), after the voir dire is completed and the actual panel is sworn in, just before opening statements of counsel. In addition to the standard 27 instructions (such as 9th Cir. Jury Instruction Nos. 1.1A, 1.2, etc.), the parties may request that the Court include in the Initial Set those instructions which state the essential elements of the cause(s) of action or affirmative defenses 28 on which the respective parties bear the burden of proof. 4 Case 2:16-cv-05051-GW-AFM Document 8 Filed 07/21/16 Page 5 of 10 Page ID #:53 1 Jury Instruction Number and Party(s) Rejected Given Given as Date Source/Identification/Description Offering Modified 2 3 4 5 6 Each juror will receive a written copy of the jury instructions at the close of the evidentiary 7 phase of the trial. The jury will be instructed prior to closing arguments. 8 Before giving the instructions and/or verdict forms to the jury, the Court will meet with 9 counsel and pro per litigants near the close of trial to finalize the versions of those documents. 10 11 7. Where a party seeks to present a witness’s testimony at trial by way of a deposition, 12 at least twenty-one (21) days prior to the FPTC, that party will provide the opposing side with a 13 copy of the witness’s deposition transcript with the parts it seeks to proffer marked in blue. Seven 14 (7) days later, the opposing side will return the transcript indicating in red any objections it has to 15 the parts selected by the originating party and also designating any portions which the opposing 16 side wishes to have read to the jury. At least ten (10) days before the FPTC, the parties will meet 17 and confer to resolve any differences regarding the deposition testimony. Should there be any 18 disputes which the parties cannot resolve, at least five (5) days before the FPTC, the parties will 19 lodge with the court: 1) a marked copy of the deposition transcript indicating the portions agreed 20 upon and the parts in dispute, and 2) a joint filing delineating the parties’ respective positions on 21 the disputed parts. The Court will resolve those disputes at the FPTC. 22 At the trial, the marked deposition will be read to the jury by counsel unless some other 23 method is agreed upon. If the deposition was taken by way of video, the edited videotape can be 24 played to the jury. 25 26 8. The parties are requested to reach as many stipulations of fact as they can before 27 trial in order to reduce trial time, simplify the proceedings, and make the process more intelligible 28 5 Case 2:16-cv-05051-GW-AFM Document 8 Filed 07/21/16 Page 6 of 10 Page ID #:54 1 to the jurors. Such stipulations can be read to the jury or handed out in written form at the start 2 of the trial if requested by the parties. 3 4 9. All motions in limine are to be filed and personally served no later than twenty-one 5 (21) days before the FPTC. Any oppositions to said motions are to be filed and personally served 6 ten (10) days before the FPTC. Any replies are to be filed and personally served four (4) days 7 before the FPTC and courtesy copies are to be delivered to Court chambers. 8 Motions in limine would include making requests: 1) to exclude an item of evidence or a 9 witness from the trial, 2) to bifurcate issues, 3) for the court to take judicial notice, or 4) for any 10 unusual procedure during the trial such as having the jury visit a particular location or conducting 11 an experiment in court, etc.5 However, do not waste the Court’s and your opponent’s time by 12 making general boilerplate motions in limine such as a "Motion to Exclude at Trial All Evidence 13 Not Previously Produced During Discovery".6 14 Remember, motions in limine are covered by the meet and confer requirements of Local 15 Rule 7-3. 16 17 10. On the first day of trial, parties will jointly present sets of binders containing all of 18 the pre-marked documentary and photographic exhibits for: 1) the court, 2) the court clerk (who 19 receives the originals), and 3) the witness box. Each exhibit shall be separated by a tabbed 20 divider indicating the exhibit number on the right hand side. 21 If the trial revolves around a limited set of key documents/exhibits and if the parties have 22 stipulated to the admissibility of those items, the parties can request the jurors be provided with 23 their own exhibit binders at the start of the trial. 24 25 5 Motions in limine are not meant to serve as a vehicle for resolving discovery disputes which should have already been decided before the close of discovery or for attempting to re-litigate prior judicial decisions. Further, 26 motions in limine are not a substitute for a timely made motion for summary judgment or adjudication. 27 6 Any motion to exclude evidence not produced during discovery would have to specify the particular exhibit(s) or witness(es) to be excluded, the exact discovery requests which required their revelation, and the opposing party’s 28 purported deficient response. 6 Case 2:16-cv-05051-GW-AFM Document 8 Filed 07/21/16 Page 7 of 10 Page ID #:55 1 Also, if any party potentially intends to use deposition testimony to impeach a witness (or 2 for any other purpose), a copy of the deposition transcript is to be lodged with the court clerk on 3 the first day of trial. 4 5 11. Courtroom 10 presently has available a Samsung SDP-960STA Digital Presenter 6 (an "ELMO" like device with laptop computer connections), two 40 inch flat screen monitors for 7 the jury, and concomitant desk top monitors for the judge, witness box and attorney tables. If a 8 party elects to utilize the court’s equipment, counsel are advised to learn how to operate the 9 equipment before trial begins. If counsel are bringing their own audio/visual apparatus (or have 10 any other logistical issue, e.g., a large number of boxes or exhibits), they must make 11 arrangements with the court clerk at least three (3) business days in advance of trial. 12 If interpreters are required for any witness, the party calling that witness bears the burden 13 of supplying an interpreter. 14 15 12. At the FPTC, an inquiry will also be made as to any scheduling problems and an 16 attempt will be made to accommodate parties, attorneys and witnesses at trial.7 However, the 17 failure to raise such a scheduling issue at the FPTC will normally mean that the problem will not 18 be later considered by the Court. 19 During the trial, each party must advise its opponent(s) at least 24 hours in advance of 20 the witnesses which it plans to call for the next day. Likewise, any chart or other item of 21 demonstrative evidence (which is otherwise not a pre-marked exhibit) must be shown to the 22 opponent(s) at least 48 hours before its intended use so that a hearing can conveniently be heard 23 outside the presence of the jury, if necessary. 24 25 26 7 Because trials are set with lengthy advance notice, it is expected that the parties, counsel and witnesses will have cleared their calendars for purposes of the trial. Nevertheless, it is understood that certain situations (e.g. a non-27 party doctor witness who is not a retained expert) may arise where accommodations will be necessary. At the FPTC, the parties should be knowledgeable as to their witnesses’ schedules. Upon a proper showing, the Court will allow 28 witnesses to be taken out of order. 7 Case 2:16-cv-05051-GW-AFM Document 8 Filed 07/21/16 Page 8 of 10 Page ID #:56 1 The parties are expected to have their witnesses stacked such that there will be no delay 2 between the time one witness is excused and the next one is called. Should there be any 3 instance where a party is unable to call a witness for more than thirty (30) minutes, the Court will 4 deem that side to have rested. 5 6 13. At the FPTC, the Court will discuss with the parties which of the causes of action 7 and affirmative defenses will, in fact, need to be tried to the jury. At that time, the Court will review 8 the time estimate for the trial and, if necessary, set a specified time table for each party to present 9 its claims/defenses (including the imposition of time limits on opening statements and closing 10 arguments). Since the Court’s allotment of time to try the case will inevitably be less than the 11 parties’ estimate, the Court will allocate the time generally giving the plaintiff’s side 55% to 60% 12 and the defendant’s side 45% to 40%.8 The Court will keep track of the time taken by each side. 13 14 14. Voir dire examinations will primarily be conducted by the Court. See Federal Rules 15 of Civil Procedure ("FRCP") 47(a). Each side will be allowed a brief period to ask follow-up 16 questions. Parties are to submit at the FPTC any questions that they want the Court to ask the 17 jurors. Prior to the voir dire, the Court will indicate if any of the proposed questions are 18 objectionable or if the Court will decline to ask particular question(s) but will allow the counsel to 19 ask it/them during their allotted time. 20 If the case is complex or raises "delicate issues" and if the parties stipulate in advance, they 21 can submit a proposed written jury questionnaire form at the FPTC. 22 23 15. It is this Court’s normal practice to allow jurors to ask questions of witnesses during 24 the trial using the procedure set forth in 9th Cir. Jury Instruction No. 1.15. If any party objects to 25 such juror questioning, it should raise that issue at the FPTC. 26 8 27 Because plaintiffs have the initial burden of proof and they also have to establish the factual background for the disputes, the Court normally will give them a little more than half the trial time to present their case. The Court will 28 deviate from that normal course in such situations as where the defendants’ counterclaims predominate or where there is only one plaintiff and a multitude of defendants. 8 Case 2:16-cv-05051-GW-AFM Document 8 Filed 07/21/16 Page 9 of 10 Page ID #:57 1 16. Other Trial Matters 2 a) No speaking objections. If an attorney wishes to make an objection, say the 3 word "objection" and the word or phrase that delineates its basis (e.g. "hearsay," "lack of 4 foundation," etc.). The challenged attorney is not to give a response unless specifically asked to 5 do so by the Court. 6 b) Court hours. Judge Wu hears motions on Mondays and Thursdays and therefore 7 the starting time for those days will vary depending upon the number and nature of the matters 8 on his morning calendar. Normal trial hours are from 8:30 a.m. to 12:00 p.m. and 1:15 p.m. to 9 5:00 p.m. There will be one morning and one afternoon break of about 10 to 15 minutes. 10 c) Punctuality. The first time a party’s counsel is late, the Court will verbally 11 admonish. The second time, the Court will have brought the jury into the courtroom and counsel 12 can explain their whereabouts/tardiness directly to the jury. The third time, the court will sanction 13 monetarily. 14 d) Use of podium. Counsel are expected to use the podium when questioning 15 witnesses and may not approach the jury or witness boxes unless counsel has asked and 16 obtained permission from the Court beforehand. 17 e) Moving exhibits. Counsel should move an exhibit into the record at the time the 18 exhibit is initially shown to a witness (unless the exhibit list indicates that no party has objected 19 to its admissibility). The Court will not allow parties to recall witnesses to remedy defects in the 20 initial testimony as to the admissibility of exhibits. 21 f) Advising parties and witnesses. Counsel and pro per litigants are ordered to 22 advise their parties and witnesses that, during the trial, they are not to have any contact either 23 directly or indirectly with any juror. Should counsel fail to so advise those persons and one of 24 them attempts to interface with a juror, the Court will hold the attorney in violation of this order. 25 Counsel are also instructed to advise their witnesses of any of this Court’s applicable 26 evidentiary rulings, so that witnesses do not blurt out previously excluded evidence in front of the 27 jury. Counsel will also admonish their clients, witnesses and related persons that they are not to 28 respond to particular testimony or to any ruling of this Court with observable facial expressions, 9 Case 2:16-cv-05051-GW-AFM Document 8 Filed 07/21/16 Page 10 of 10 Page ID #:58 1 body movements (such as head nodding or shaking) or commentary indicating their agreement 2 or non-agreement. 3 g) Multiple counsel. If a party has more than one trial counsel, the Court will 4 start/resume the trial once any one of the attorneys is present. Also, only one attorney may 5 question or cross-examine a witness, and/or make objections to questions or answers of a 6 particular witness. "Double teaming" will not be allowed. 7 8 17. The Court will re-address the topic of settlement at the FPTC. 9 10 IT IS SO ORDERED. 11 12 13 DATED: July 21, 2016 GEORGE H. WU 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

NOTICE OF MOTION AND MOTION for Preliminary Injunction re Against Tiger Media. Motion filed by Plaintiff ALS Scan, Inc. Motion set for hearing on 9/8/2016 at 08:30 AM before Judge George H. Wu.

Case 2:16-cv-05051-GW-AFM Document 9 Filed 07/25/16 Page 1 of 2 Page ID #:59 1 Jay M. Spillane (Bar No. 126364) jspillane@spillaneplc.com 2 SPILLANE TRIAL GROUP PLC 3 468 N. Camden Drive Second Floor 4 Beverly Hills, CA 90210 (424) 217-5980 5 (888) 590-1683 (fax) 6 Attorneys for Plaintiff ALS Scan, Inc. 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ALS SCAN, INC., a Maryland Case No.: 2:16-cv-05051-GW-AFM 11 corporation, MOTION BY PLAINTIFF ALS SCAN, INC. FOR A PRELIMINARY 12 INJUNCTION AGAINST Plaintiff, DEFENDANT TIGER MEDIA, 13 INC.; NOTICE OF HEARING 14 vs. [Filed Concurrently: Memorandum; 15 Walsh Declaration, Penn Declaration; CLOUDFLARE, INC., a Delaware Easton Declaration; Spillane 16 corporation; TIGER MEDIA, INC., a Declaration, Notice of Manual Saskatchewan provincial corporation; Lodging, (Proposed) Preliminary 17 Injunction] GERARDUS VAN GINNEKEN aka 18 "JUICY JAY," an individual; and DOES Date: September 8, 2016 19 1-10, inclusive, Time: 8:30 a.m. Place: Courtroom 10 20 Defendants. 312 N. Spring Street 21 Los Angeles, CA 22 23 24 25 26 27 28 Motion for Preliminary Injunction – Motion and Notice of Hearing Case 2:16-cv-05051-GW-AFM Document 9 Filed 07/25/16 Page 2 of 2 Page ID #:60 1 Plaintiff ALS Scan, Inc. ("ALS") hereby moves for issuance of a 2 preliminary injunction against Tiger Media, Inc. ("Tiger") in the form 3 submitted concurrently with this motion. 4 The motion will be made pursuant to FRCP R. 65(a), 17 U.S.C. § 502 5 and 15 U.S.C. § 1116 on the grounds that ALS has demonstrated probably 6 successful claims against Tiger for contributory and vicarious copyright 7 infringement and contributory trademark infringement and ALS is faced with 8 irreparable injury. 9 The motion will be based upon the concurrently filed Memorandum, 10 Declarations of Steve Easton, Eric Penn, Sarah Walsh and Jay Spillane, Notice 11 of Manual Filing and [Proposed] Preliminary Injunction. 12 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: 13 PLEASE TAKE NOTICE that said motion will be heard at 8:30 a.m. on 14 September 8, 2016 in Courtroom 10 of the above-entitled Court, located at 312 15 N. Spring Street, Los Angeles, CA. 16 17 18 DATED: July 25, 2016 SPILLANE TRIAL GROUP PLC 19 20 By: _____________________________ 21 Jay M. Spillane 22 Attorneys for Plaintiff ALS Scan, Inc. 23 24 25 26 27 28-1-Motion for Preliminary Injunction – Motion and Notice of Hearing

MEMORANDUM in Support of NOTICE OF MOTION AND MOTION for Preliminary Injunction re Against Tiger Media. Motion {{9}} filed by Plaintiff ALS Scan, Inc.

1 Jay M. Spillane (Bar No. 126364) jspillane@spillaneplc.com 2 SPILLANE TRIAL GROUP PLC 3 468 N. Camden Drive Second Floor 4 Beverly Hills, CA 90210 (424) 217-5980 5 (888) 590-1683 (fax) 6 Attorneys for Plaintiff ALS Scan, Inc. 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ALS SCAN, INC., a Maryland Case No.: 2:16-cv-05051-GW-AFM 11 corporation, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 12 MOTION BY PLAINTIFF ALS Plaintiff, SCAN, INC. FOR A PRELIMINARY 13 INJUNCTION AGAINST 14 vs. DEFENDANT TIGER MEDIA, INC. 15 [Filed Concurrently: Motion and CLOUDFLARE, INC., a Delaware Notice of Hearing; Walsh 16 corporation; TIGER MEDIA, INC., a Declaration, Penn Declaration; Saskatchewan provincial corporation; Easton Declaration; Spillane 17 Declaration, Notice of Manual Filing, GERARDUS VAN GINNEKEN aka (Proposed) Preliminary Injunction] 18 "JUICY JAY," an individual; and DOES 1-10, inclusive, Date: September 8, 2016 19 Time: 8:30 a.m. 20 Defendants. Place: Courtroom 10 21 312 N. Spring Street Los Angeles, CA 22 23 24 25 26 27 28 Motion for Preliminary Injunction – Memorandum 1 Table of Contents 2 SUMMARY OF MOTION...................................................................................1 3 STATEMENT OF FACTS...................................................................................3 4 PRELIMINARY INJUNCTION STANDARDS...............................................12 5 ARGUMENT......................................................................................................13 6 I. ALS HAS SHOWN A LIKELIHOOD OF SUCCESS ON ITS CLAIM 7 AGAINST TIGER MEDIA FOR CONTRIBUTORY COPYRIGHT 8 INFRINGEMENT............................................................................................13 9 A. ALS is Likely to Succeed Under the "Material Contribution" Prong of 10 Contributory Liability....................................................................................13 11 B. ALS is Likely to Succeed Under the "Inducement" Prong of 12 Contributory Liability....................................................................................19 13 II. ALS HAS SHOWN A LIKELIHOOD OF SUCCESS ON ITS CLAIM 14 AGAINST TIGER MEDIA FOR VICARIOUS COPYRIGHT 15 INFRINGEMENT............................................................................................21 16 III. ALS IS LIKELY TO PREVAIL ON ITS CLAIMS FOR SECONDARY 17 TRADEMARK INFRINGEMENT.................................................................22 18 IV. ALS HAS SHOWN IRREPARABLE HARM IN THE ABSENCE OF 19 INJUNCTIVE RELIEF....................................................................................22 20 V. THE BALANCE OF EQUITIES TIP SHARPLY IN FAVOR OF ALS. 23 21 VI. THE PUBLIC INTEREST FACTOR IS EITHER NEUTRAL OR 22 WEIGHS IN FAVOR OF ALS........................................................................24 23 VII. THE REQUESTED INJUNCTIVE RELIEF IS WARRANTED.........24 24 VIII. THE COURT SHOULD ORDER NO, OR A MINIMAL, BOND....25 25 CONCLUSION...................................................................................................25 26 27 28 i Motion for Preliminary Injunction – Memorandum 1 Table of Authorities 2 Cases 3 A&M Records, Inc. v. Napster, Inc., 114 F.Supp.2d 896 (N.D. Cal. 2000), 4 aff’d 239 F.3d 1004 (9th Cir. 2001)..................................................... 13, 14, 23 5 A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001)........... 13, 21 6 Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011).................13 7 BMG Rights Management v. Cox Communications, __ F.Supp.3d __, 8 2015 WL 7756130 (E.D. Va. 2015).................................................................15 9 Capitol Records, Inc. v. MP3Tunes, LLC, 48 F.Supp.3d 703 (S.D.N.Y. 2014) 18 10 Capitol Records, LLC v. Escape Media Group Inc., 2015 WL 1402049 11 (S.D.N.Y. 2015)...............................................................................................15 12 Columbia Pictures Industries Inc. v. Fung, 710 F.3d 1020 (9th Cir. 2013)........19 13 Davis. v. E.I. DuPont de Nemours & Co., 240 F.Supp. 612 (S.D.N.Y. 1965)...21 14 Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561 (1975)..........................22 15 Fonovisa v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996)........ 14, 17, 18, 21 16 Gershwin Publ'g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159 17 (2d Cir.1971)....................................................................................................13 18 GoTo.com, Inc. v. Walt Disney, 202 F.3d 1199 (9th Cir. 2002)..........................25 19 Grand River Enterprises Six Nations, Ltd. v. Pryor, 481 F.3d 60 20 (2d Cir. 2007)...................................................................................................22 21 Louis Vuitton Malletier v. Akanoc Solutions, Inc., 658 F.3d 936 22 (9th Cir. 2011)...................................................................................................22 23 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012)............................................24 24 Metro-Golden-Mayer Studios, Inc. v. Grokster, Ltd. 545 U.S. 913, 25 125 S.Ct. 2764 (2005)............................................................................... 17, 19 26 Omega Importing Corp. v. Petri–Kine Camera Co., 451 F.2d 1190 27 (2d Cir. 1971)...................................................................................................23 28 ii Motion for Preliminary Injunction – Memorandum 1 Perfect 10 v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146 2 (C.D. Cal. 2002)....................................................................................... passim 3 Perfect 10 v. Visa Intern. Service Ass’n, 494 F.3d 788 (9th Cir. 2007)..............18 4 Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007)............ 17, 18 5 Rent-A-Center, Inc. v. Canyon Television and Appliance Rental, Inc., 6 944 F.2d 597 (9th Cir. 1991).............................................................................22 7 Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc., 8 256 F.Supp. 399 (S.D.N.Y. 1966)....................................................................15 9 Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009)...................................24 10 Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 11 129 S.Ct. 365 (2008)........................................................................................13 12 WPIX, Inc. v. ivi, Inc., 765 F.Supp.2d 594 (S.D.N.Y. 2011)..............................23 13 Statutes 14 15 U.S.C. § 1116.................................................................................................12 15 17 U.S.C. § 502...................................................................................................12 16 Rules 17 FRCP R. 65(a)....................................................................................................12 18 19 20 21 22 23 24 25 26 27 28 iii Motion for Preliminary Injunction – Memorandum 1 SUMMARY OF MOTION 2 Plaintiff ALS Scan, Inc. ("ALS") moves for a preliminary injunction 3 against Tiger Media, Inc. ("Tiger"), a company that created and operates a 4 virtual "marketplace" known as "JuicyAds." Tiger provides the virtual site and 5 facilities wherein pirate websites display infringing adult content. 6 Webmasters apply through the JuicyAds website to become "Publishers," 7 sites that sell Internet traffic, in the vast JuicyAds "network." Prospective 8 Publishers inform JuicyAds of the URL of their website, receive a PIN from 9 JuicyAds then use that PIN to receive computer code that permits the Publisher 10 to place an ad served by JuicyAds on the Publisher’s website. JuicyAds’ 11 network also includes "Advertisers," traffic buyers, who can use JuicyAds’ 12 robust search capabilities to locate and review Publisher sites, including 13 detailed analytics regarding the traffic to each such site. Advertisers can choose 14 to purchase traffic either from specific Publishers or across the entire run of 15 Publishers. Publishers choose the price for their traffic, from which JuicyAds 16 takes a 25% commission. JuicyAds provides extensive customer support to its 17 network of Publisher and Advertisers, including a personal account 18 representative, online live support and online answers to frequently asked 19 questions. 20 When a consumer clicks on a JuicyAds ad served on a Publisher’s 21 website, s/he is transported momentarily to the JuicyAds server then to the site 22 of a purchasing Advertiser. 23 ALS, through its authorized agent Steve Easton, sent 195 separate email 24 notifications to JuicyAds with multiple hyperlinks of entire galleries of 25 infringing ALS images on imgchili.net, a site on which JuicyAds’ ads were 26 routinely placed proximate to stolen ALS content. Concerned, ALS employee 27 Eric Penn obtained a personal JuicyAds account and used JuicyAds’ detailed 28 online search tools to locate eight additional Publishers in the JuicyAds network-1-Motion for Preliminary Injunction – Memorandum 1 that chronically display infringing ALS content. Steve Easton sent numerous 2 additional notifications of infringement to JuicyAds concerning these eight 3 additional sites. 4 Tiger states a policy on the JuicyAds site to "remove or block access to 5 material that it believes in good faith to be copyrighted material that has been 6 illegally copied and distributed by any of our customers, advertisers and 7 publishers" and to "discontinue service to repeat infringers." However, Tiger 8 maintained this policy for show. Tiger not only steadfastly refused to terminate 9 imghili.net or any of the other eight repeat infringers, but responded to Mr. 10 Easton’s notifications with derision and threats of liability. 11 To test Tiger’s willingness to turn a blind eye to infringing content, Penn 12 disclosed to JuicyAds that his website was www.stolenalspictures.com, a site 13 that proclaimed its content was infringing and available for free because of 14 advertisers willing to pay for traffic drawn through the lure of infringing 15 content. The site was accepted as a JuicyAds "Publisher" site and has been in 16 the JuicyAds’ network for months. 17 Only after Tiger learned of the existence of this lawsuit did it finally 18 apply its own repeat infringer policy and terminate the nine sites complained of 19 in this action from its network. 20 Though Tiger has terminated the nine repeat infringers located to date, 21 ALS is still threatened with irreparable harm. Tiger ignores red flags of 22 infringing activity and has made no effort to review its network of Publishers 23 for evidence of infringement. Tiger could do this, because its principal, who 24 goes by "Juicy Jay," admitted to Steve Easton that he can spot a pirate website 25 at a glance. ALS therefore has moved for a preliminary injunction requiring 26 Tiger to actually maintain and enforce a reliable repeat infringer policy and to 27 take concrete steps to locate and terminate from its network any existing 28 Publishers that also display infringing ALS content. ALS also prays that the-2-Motion for Preliminary Injunction – Memorandum 1 injunction require Tiger to review potential Publisher websites in the intake 2 process to weed out infringement at inception. 3 ALS is without an adequate remedy at law. The balance of equities tip in 4 ALS’s favor. ALS urges the Court to order preliminary injunctive relief, 5 pending trial, in the form submitted herewith. 6 STATEMENT OF FACTS 7 ALS Background 8 ALS was founded in 1996. ALS owns a substantial library of adult 9 entertainment works. ALS charges consumers fees in consideration for a user 10 identification and password which will provide the consumer with access to 11 proprietary content on ALS’s secure Internet sites. ALS displays its trademark 12 and copyright information on its works. (Walsh Dec. ¶ 2.) 13 ALS has submitted hundreds of registrations for its copyrighted works to 14 the U.S. Copyright Office, including registrations covering all of the works 15 referenced in the notices of infringement submitted in connection with this 16 motion. (Walsh Dec. ¶ 3; Complaint Ex. 1; see generally Easton Dec.) 17 ALS is the owner of registered trademarks for the mark "ALS Scan" in 18 connection with adult entertainment. (Walsh Decl. ¶ 4; Complaint Ex. 2.) 19 Pirate Sites, Ad Networks and the Impact on Copyright Owners 20 ALS’s receipts and net profits from exploitation of its proprietary content 21 grew steadily and impressively from 1996 through about 2001. (Walsh Decl. ¶ 22 5.) Since then, and continuing to the present, such receipts and net profits have 23 declined. In this time, ALS has increasingly observed ALS works on growing 24 numbers of adult content websites, all without the knowledge of or license from 25 ALS. The ascendancy of infringing ALS works on the Internet has increased as 26 high speed Internet access has been made increasingly available to consumers 27 and businesses. (Walsh Decl. ¶ 6.) 28-3-Motion for Preliminary Injunction – Memorandum 1 This case exemplifies a serious problem, namely, the creation and 2 maintenance of virtual networks built upon "pirate" websites, wherein the 3 network participants all profit from traffic drawn through the lure of 4 infringement. ALS releases new content on its subscription websites to 5 maintain the interest of its paid subscribers. Within days or even hours after 6 such a release, entire galleries of such ALS content appear, without the 7 knowledge of or any license from ALS, on websites that appear to have no 8 activity other than to display infringing content and which participate in 9 networks such as the one maintained by Tiger. (Walsh Decl. ¶ 8; Easton Decl. 10 generally; Penn Decl. generally.) 11 Pirate sites monetize their traffic through advertisements. Clicking on 12 these banners causes the web page resolve momentarily to a server maintained 13 by an advertising network, such as JuicyAds, before resolving to a page 14 maintained by another network member offering content for purchase. The 15 pirates continuously steal copyrighted content to lure consumers, direct Internet 16 traffic through banner advertisements, receive remuneration from the traffic 17 networks and then repeat the cycle. In this fashion the advertising networks 18 induce pirate sites to continuously infringe copyright. (Walsh Decl. ¶¶ 9, 10.) 19 The observed growth of infringing content on these networks has 20 coincided with noticeable decline in ALS’s revenues and profits since 2001. 21 There are no material factors other than rampant infringement on the Internet 22 that correlates to this drop in profits. Rampant infringement on the Internet has 23 caused ALS to incur increasing expenses in connection with sending 24 notifications of infringement and retaining counsel. ALS has had to ask 25 employees to work longer hours for lower wages and has laid people off 26 because of the pressure of infringing content. (Walsh Decl. ¶¶ 7, 13-15.) 27 28-4-Motion for Preliminary Injunction – Memorandum 1 The JuicyAds Network 2 Tiger owns and operates the "JuicyAds" advertising network. (Spillane 3 Decl. ¶¶ 2-10, Exs. 1-6; Easton Decl. ¶¶ 37-45, Exs. 10-16.) 4 Tiger explains on the JuicyAds web page that it is far more than a mere 5 advertiser. Tiger says JuicyAds is a "network," a "marketplace," a 6 "community" and a "platform." 7 JuicyAds’ home page says: "JuicyAds is the sexy advertising network. It 8 is a marketplace for Publishers to increase their revenues by selling ad space to 9 Advertisers." (Penn Decl. ¶ 48 Ex. 11.)1 10 In JuicyAds’ parlance, according to its Terms of Service: "’JuicyAds’ is 11 an advertising brokerage service, accessible at www.juicyads.com, which 12 allows website Publishers to place ads on their websites and for Advertisers to 13 buy the space. All aspects of this service are collectively referred to herein as 14'JuicyAds’." "’Users’ are individuals or companies registered through the 15 JuicyAds service as either an Advertiser or a Publisher." "’Publishers’ are 16 Users who sell advertising through the JuicyAds service." "’Advertisers’ are 17 Users who buy advertising through the JuicyAds service." (Penn Decl. ¶ 50 Ex. 18 13.) 19 JuicyAds’ "About" page says: "We have one of the best and most easy to 20 use interfaces for purchasing ads in the industry and one of the only with 21 purchasing in seconds and instant approval." "We deliver over one 22 Billion impressions daily and always growing." "Serving 172,000+ 23 websites and 92,000+ clients, and more joining daily." "We protect our clients 24 1 Printed screen captures from www.juicyads.com are admissible in evidence given 25 the evidence that Tiger owns the advertising network called "JuicyAds" and the 26 information on the screen captures showing that they came from pages on the juicyads.com website. Printouts of information on the web "are the only practical 27 method by which the allegations of the complaint can be brought before the Court and 28 there is generally a reduced evidentiary standard in preliminary injunction motions." Perfect 10 v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1154 (C.D. Cal. 2002).-5-Motion for Preliminary Injunction – Memorandum 1 with the strongest click fraud detection in the industry. Your profits matter to 2 us. So sit back, relax, get Juicy and make money!" "We stand alone and in 3 front as the most favorite, highest-rated, most respected, and most trusted Ad 4 Network." "We always choose the needs and expectations of our Publishers 5 and Advertisers above making a'quick buck.’ We care about your traffic as 6 much as you do. That means that as an advertising platform, our goal is to 7 provide income for both the advertisers and publisher without annoying surfers 8 or disrupting the surfing experience." "We provide personal service and help to 9 Publishers and Advertisers everyday [sic]. Answering questions, helping 10 people setup or buy ads, and giving advice for using our service is just what we 11 do. If you need help, just ask." (Penn Decl. ¶ 49 Ex. 12.) 12 JuicyAds’ "Lifestyle" page invites member of the JuicyAds network to 13 "Become a part of the JuicyAds Lifestyle!" "We are building a better 14 advertising network, not just a bigger one. Our community of Publishers and 15 Advertisers and the lifestyle they enjoy with us unparalleled in the industry 16 [sic]." The page goes on to invite Users to members-only JuicyAds events. 17 (Penn Decl. ¶ 51 Ex. 14.) 18 JuicyAds reserves sole discretion and ability to suspend or terminate any 19 Users’ account at any time. JuicyAds’ Terms of Service prohibit websites that 20 engage in "Distribution of any Copyrighted materials without permission 21 (Copyright Infringement), or linking to any Copyrighted materials 22 (Contributory or Vicarious Infringement)." TOS ¶ IV.(a)(vii). JuicyAds 23 reserves the right to "investigate any aspect of any account at any time without 24 notice" and suspend payments and access to the JuicyAds service. TOS ¶ XI. 25 (Penn Decl. ¶ 50 Ex. 13.) 26 According to JuicyAds’ DMCA page: "It is JuicyAds' policy to (1) 27 remove or block access to material that it believes in good faith to be 28 copyrighted material that has been illegally copied and distributed by any of our-6-Motion for Preliminary Injunction – Memorandum 1 customers, advertisers, publishers, affiliates, members or users; (2) remove or 2 disable access to material that is claimed in good faith to be infringing upon 3 copyrighted material upon notification to our Designated Agent with terms in 4 the notice required by the DMCA; and (3) remove and discontinue service to 5 repeat offenders." (Penn Decl. ¶ 52 Ex. 15.) 6 Becoming a User in the JuicyAds Network 7 Webmasters apply through the JuicyAds website to become Publishers in 8 the vast JuicyAds network. Prospective Publishers inform JuicyAds of the 9 URL of their website, receive a PIN from JuicyAds then use that PIN to receive 10 computer code that permits the Publisher to place an ad served by JuicyAds on 11 the Publisher’s website. The process by which a User can get his site registered 12 as a Publisher in the JuicyAds network is fast and automated, without contact 13 from JuicyAds personnel. (Penn Decl. ¶¶ 53-57, Ex. 16.) 14 JuicyAds’ Advertisers can use robust search capabilities on juicyads.com 15 to locate and review Publisher sites, including detailed analytics regarding the 16 traffic to each such site. JuicyAds offers Users various ways to frame searches 17 for Publisher sites, including by categories of content types (e.g. "Asian" or 18 "Pornstar"), Alexa rating, 2 content rating, sites per page and website types (e.g. 19 "Blog" or "Dating/Casual"). JuicyAds displays analytics for each of its 20 Publisher sites including Alexa rankings, daily views and daily clicks. (Penn 21 Decl. ¶¶ 58-64, Exs. 17-21.) 22 Publishers choose the price for their traffic, from which JuicyAds takes a 23 25% commission. (Penn Decl. ¶¶ 67, 68, Exs. 23-24.) Advertisers can choose 24 to purchase traffic either from specific Publishers or across the entire run of 25 Publishers. (Penn Decl. ¶ 73, Ex. 29.) 26 27 28 2 "Alexa" is a service located at www.alexa.com that provides data and analytics for ranking websites according to amount of traffic they receive.-7-Motion for Preliminary Injunction – Memorandum 1 When a consumer clicks on a JuicyAds ad on a Publisher site, s/he is 2 transported momentarily to the JuicyAds server then to the site of a purchasing 3 Advertiser. (Penn Decl. ¶¶ 2-44, Exs. 1-9.) 4 JuicyAds provides extensive customer support to its network of Publisher 5 and Advertisers, including a personal account representative, online live support 6 and online answers to frequently asked questions. (Penn Decl. ¶¶ 65-74, Exs. 7 22-30.) 8 JuicyAds’ Site Enables ALS to Locate Repeat Infringers 9 ALS, through its authorized agent Steve Easton, sent 195 separate email 10 notifications to JuicyAds with multiple hyperlinks of entire galleries of 11 infringing ALS images on imgchili.net, a site on which JuicyAds’ ads were 12 routinely placed proximate to stolen ALS content. However, JuicyAds refused 13 to apply its repeat infringer policy to imgchili.net. (Penn Decl. ¶¶ 18-20, Ex. 1, 14 ¶¶ 45-47 Ex. 10; Easton Decl. ¶¶ 9-12, Ex. 1; Notice of Manual Filing.) 15 Concerned about JuicyAds’ attitude and the possibility that JuicyAds 16 harbored other repeat infringers in its network, ALS employee Eric Penn 17 obtained a personal JuicyAds account and used JuicyAds’ detailed online 18 search tools to locate eight additional Publishers in the JuicyAds network that 19 chronically display infringing ALS content. (Penn Decl. ¶¶ 58-64, Exs. 17-21.) 20 StolenALSpictures.com 21 Concerned about JuicyAds’ toleration for repeat infringement, and to test 22 their system, if any, for reviewing websites, Penn submitted information to 23 JuicyAds that his Publisher website within the JuicyAds network was 24 www.stolenalspictures.com. In response, JuicyAds sent Penn information and 25 hyperlinks that permitted him to place JuicyAds ads on stolenalspictures.com. 26 (Penn Decl. ¶¶ 53-57, Ex. 16.) 27 The landing page on stolenalspictures.com.says at the top: 28 "StolenALSImages.com – Infringing ALS Photos Made Free." The subtitle-8-Motion for Preliminary Injunction – Memorandum 1 says: "Why Pay for Porn When You Get it Free?" The first paragraph says: 2 "StolenALSImages.com features the same popular picture sets you can get with 3 the purchase of ALSScan.com and ALSAngels.com memberships, for FREE! 4 How do we do this? First, we stole these copyrighted images from ALS 5 without paying a license fee. –Then, we get advertisers who profit from 6 copyright infringement to pay us for traffic. So if you enjoy having free access 7 to these ALSScan.com and ALSAngels.com photo sets, please be sure to click 8 on one of our ads!" (Penn Decl. ¶ 54, Ex. 16 p.1.) 9 Actual Notice of Infringement and JuicyAds’ "Response" 10 Steve Easton, authorized agent for ALS, and Eric Penn, ALS employee, 11 observed numerous instances in which infringing ALS content appeared on 12 Publisher sites in the JuicyAds’ network, wherein ads served on the Publisher 13 site by JuicyAds were placed proximate to infringing ALS works. These were 14 imgchili.net and the eight additional sites found using JuicyAds’ online 15 information about its Publishers. (Easton Decl. ¶¶ 4-36, Exs. 1-9; Penn Decl. ¶¶ 16 2-44, Exs. 1-9.) 17 In response to these observations, Mr. Easton sent numerous email 18 notifications to JuicyAds of the presence of infringing ALS images on 19 JuicyAds’ Publisher sites. The notices often identified long lists of pages on 20 which such infringing images appeared, each page of which often displayed 21 hundreds of infringing images. Mr. Easton sent the following number of 22 notices of infringing ALS images on the following JuicyAds Publisher sites. In 23 no case prior to the Complaint did JuicyAds apply its repeat infringer policy by 24 terminating these accounts: 25 a. Imgchili.net (195 notices) (Easton Decl. ¶¶ 9-12, Ex. 1; Penn Decl. ¶¶ 26 18-20, Ex. 1; Notice of Manual Filing) 27 b. Slimpics.com (22 notices) (Easton Decl. ¶¶ 13-15, Ex. 2; Penn Decl. 28 ¶¶ 21-23, Ex. 2; Notice of Manual Filing)-9-Motion for Preliminary Injunction – Memorandum 1 c. Namethatpornstar.com (11 notices) (Easton Decl. ¶¶ 16-18, Ex. 3; 2 Penn Decl. ¶¶ 24-26, Ex. 3; Notice of Manual Filing) 3 d. Cumonmy.com (11 notices) (Easton Decl. ¶¶ 19-21, Ex. 4; Penn Decl. 4 ¶¶ 27-29, Ex. 4; Notice of Manual Filing) 5 e. Bestofsexpics.com (nine notices) (Easton Decl. ¶¶ 22-24, Ex. 5; Penn 6 Decl. ¶¶ 30-32, Ex. 5; Notice of Manual Filing) 7 f. Teenbe.com (nine notices) (Easton Decl. ¶¶ 25-27, Ex. 6; Penn Decl. 8 ¶¶ 33-35, Ex. 6; Notice of Manual Filing) 9 g. Mymaturespace.com (nine notices) (Easton Decl. ¶¶ 28-30, Ex. 7; 10 Penn Decl. ¶¶ 36-38, Ex. 7; Notice of Manual Filing) 11 h. Spankwiki.net (ten notices) (Easton Decl. ¶¶ 31-33, Ex. 8; Penn Decl. 12 ¶¶ 39-41, Ex. 8; Notice of Manual Filing) 13 i. Stooorage.com (22 notices) (Easton Decl. ¶¶ 34-36, Ex. 1; Penn Decl. 14 ¶¶ 42-44, Ex. 9; Notice of Manual Filing) 15 JuicyAds Induced Cycles of Continuous Infringement 16 Imgchili.net was a particularly egregious infringer. That site pays its 17 users for image views of uploaded material. Imgchili.net users would subscribe 18 to ALS and other adult content sites, download the content from secure 19 members’ pages then upload the content without permission to Imgchili.net. 20 When Mr. Easton sent an infringement notification pertaining to Imgchili.net, 21 the pages identified in Mr. Easton’s notice would go down, but as soon as the 22 next day the same or other infringing ALS images would appear on 23 Imgchili.net. JuicyAds’ refusal to terminate imgchili.net induced a continuous 24 cycle of uploads of fresh infringing material, forcing ALS to play a frustrating 25 game of "whack-a-mole." (Penn Decl. ¶¶ 18-20, Ex. 1, ¶¶ 45-47, Ex. 10; 26 Easton Decl. ¶¶ 9-12, Ex. 1; Notice of Manual Filing.) 27 28-10-Motion for Preliminary Injunction – Memorandum 1 JuicyAds’ Correspondence with Mr. Easton 2 Mr. Easton has corresponded with Juicy Jay concerning infringement on 3 JuicyAds’ Publisher sites. At first, Juicy Jay’s correspondence reflected his 4 willingness to enforce JuicyAds’ policy to terminate repeat infringers. On July 5 21, 2011 Juicy Jay said about an infringing site in the JuicyAds network: "I 6 have suspended this domain from our network due to the repeated 7 infringements." (Easton Decl. ¶ 39, Ex. 10.) In a July 26, 2011 email 8 concerning infringements on freebirdnet.org, Juicy Jay said "I suspended this 9 website from our network.. I took a look at the site and it was all stolen 10 content." (Emphasis added.) He further said "Unfortunately, for the most part 11 the ad networks seem to care about profits, not piracy.... We have taken a 12 position to try and combat blatant piracy for those who refuse to comply or 13 chronic offenders.... Ultimately, anyone we don’t service in our network, is a 14 potential client for them. These pirates jump from network to network.. 15 whoever will take them." (Easton Decl. ¶ 40, Ex. 11.) 16 By 2012, Juicy Jay withdrew from his willingness to enforce JuicyAds 17 repeat infringer policy, admitting that "it costs me money every time we take 18 action." Juicy Jay began to mouth the position that JuicyAds supposedly had 19 no responsibility to act in relation to notification of infringements on its 20 network. "As a third party service its [sic] not really our responsibility to 21 answer to DMCA requests on a website we have no ownership or direct 22 connection to." (Easton Decl. ¶ 41, Ex. 12.) By 2013 Juicy Jay responded to 23 Easton’s infringement notifications with open hostility, even threatening him 24 with legal action for continuing to send his infringement notices. (Easton Decl. 25 ¶¶ 42, 44, Exs. 13, 15.) 26 On November 27, 2015 Mr. Easton sent an email to Juicy Jay, pointing 27 out that he had sent well over one hundred notifications of infringement on 28 imgchili.net, that JuicyAds’ own Terms of Service say they terminate repeat-11-Motion for Preliminary Injunction – Memorandum 1 infringers, yet they had not terminated imgchili.net. Juicy Jay responded with 2 contempt and aggression, stating "[t]his behaviour appears to be abusive in 3 nature" and demanding that Easton supply yet another copy of the notifications 4 that had been sent for Juicy Jay’s "review." (Easton Decl. ¶ 45, Ex. 16.) 5 JuicyAds Can Identify Pirate Sites with a "Look" 6 Juicy Jay says he can "look" at a site and tell it is a pirate site. He is 7 right. Sites that lure traffic through the draw of infringement, and then 8 monetize this traffic through virtual networks like JuicyAds, are easy to spot. 9 First, pirate websites don’t charge a subscription fee to view their content. 10 Second, a pirate site often displays content by multiple copyright owners, 11 sometimes leaving the owners’ copyright notification on the image. Third, a 12 pirate site displays entire galleries of ALS models, perhaps 200 or more images, 13 rather than the sixteen or so images we authorize our affiliates to use. Fourth, 14 the images are available for download, sometimes with a convenient zip 15 download feature that permits a user to download an entire ALS gallery in one 16 click. Fifth, the site is not pointing traffic to ALS but to third parties. (Walsh 17 Decl. ¶¶ 18-22; Easton Decl. ¶ 3.) 18 JuicyAds Enforces its Repeat Infringer Policy Only After Being Sued 19 Tiger found out about this case after it was filed. Only after learning that 20 it was being sued did Tiger enforce its own repeat infringer policy and 21 terminate services to the sites identified in Mr. Easton’s notices. (Spillane Decl. 22 ¶ 10, Ex. 6.) 23 PRELIMINARY INJUNCTION STANDARDS 24 The Court may "grant temporary and final injunctions on such terms as it 25 may deem reasonable to prevent or restrain infringement of a copyright." 17 26 U.S.C. § 502. The Court has the same powers to restrain infringement of 27 registered trademarks. 15 U.S.C. § 1116. See also FRCP R. 65(a). 28-12-Motion for Preliminary Injunction – Memorandum 1 In ruling on a request for preliminary injunction, a court must weigh: (1) 2 likelihood of success on the merits; (2) irreparable harm in the absence of 3 injunctive relief; (3) the balance of equities; and (4) the public interest. Winter 4 v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 374 5 (2008). Alternatively, serious questions going to the merits and a balance of 6 hardships that tilts sharply toward the plaintiff may support preliminary 7 injunctive relief. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 8 (9th Cir. 2011). 9 ARGUMENT 10 I. ALS HAS SHOWN A LIKELIHOOD OF SUCCESS ON ITS 11 CLAIM AGAINST TIGER MEDIA FOR CONTRIBUTORY 12 COPYRIGHT INFRINGEMENT. 13 ALS has demonstrated that Tiger constructed, maintains and profits from 14 a "network," a "marketplace," a "community" and a "platform" wherein Tiger 15 provides valuable assistance, services, code, search capabilities and payments to 16 Tiger clients, "Publishers" who draw traffic through the lure of infringing 17 works and "Advertisers" who buy the traffic. Tiger is probably liable for 18 contributory copyright infringement. 19 A. ALS is Likely to Succeed Under the "Material Contribution" 20 Prong of Contributory Liability. 21 "[O]ne who, with knowledge of the infringing activity, induces, causes or 22 materially contributes to the infringing conduct of another, may be held liable 23 as a'contributory’ infringer." A&M Records, Inc. v. Napster, Inc., 239 F.3d 24 1004, 1019 (9th Cir. 2001), citing Gershwin Publ'g Corp. v. Columbia Artists 25 Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir.1971); Ninth Circuit Manual of Model 26 Civil Jury Instructions 17.20. "Courts do not require actual knowledge; rather, 27 a defendant incurs contributory copyright liability if he has reason to know of 28 the third party's direct infringement." A&M Records, Inc. v. Napster, Inc., 114-13-Motion for Preliminary Injunction – Memorandum 1 F.Supp.2d 896, 918 (N.D. Cal. 2000), aff’d 239 F.3d 1004 (9th Cir. 2001); see 2 Gershwin, 443 F.2d at 1163 (general knowledge that third parties performed 3 copyrighted works satisfied knowledge element of contributory infringement). 4 In Fonovisa v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996) Cherry 5 Auction operated a swap meet. Vendors paid a fee for booth space. The sheriff 6 raided the swap meet and seized thousands of counterfeit recordings. The 7 following year, finding that vendors were still selling counterfeit recordings, the 8 sheriff notified Cherry Auction of ongoing sales of infringing materials. The 9 plaintiff sent an investigator to the Cherry Auction site and observed sales of 10 counterfeit recordings. Cherry Auction was liable for contributory infringement 11 because, with actual knowledge of direct infringement by vendors, Cherry 12 Auction continued to provide support services to such vendors including 13 "space, utilities, parking, advertisement, plumbing and customers." 14 "[P]roviding the site and facilities for known infringing activity is sufficient to 15 establish contributory liability." 16 Napster maintained a website through which users could search for and 17 download music files. Napster had actual notice of direct infringement because 18 the Recording Industry Association of America ("RIAA") informed Napster of 19 the location of thousands of infringing files. Napster, 114 F.Supp.2d at 918. 20 The court rejected Napster’s argument that the title of a music file did not 21 permit Napster to determine the infringing nature of each such file, as the 22 majority of the music files made accessible by Napster were copyrighted to 23 RIAA members. Napster, 114 F.Supp.2d at 918-19. Napster had constructive 24 knowledge of direct infringements because its executives had recording 25 industry experience and were sophisticated about intellectual property laws. 26 Napster, 114 F.Supp.2d at 919. Napster materially contributed to direct 27 infringement because "Napster [] supplie[d] the proprietary software, search 28 engine, servers, and means of establishing a connection between users'-14-Motion for Preliminary Injunction – Memorandum 1 computers. Without the support services defendant provide[d], Napster users 2 could not find and download the music they want with the ease of which 3 defendant boasts." Napster, 114 F.Supp.2d at 920. 4 In Perfect 10 v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146 (2002), 5 Cybernet Ventures maintained and promoted a network of "300,000'regular’ 6 sites and 14,000'Gold’ sites." 213 F.Supp.2d at 1158. Each member of the 7 Cybernet network was responsible for maintaining and hosting its own site. Id. 8 When a consumer visited a site in the Cybernet network, consumers were 9 directed to Cybernet for payment. Id. Cybernet advertised and provided means 10 by which consumers could search for websites in the Cybernet network. 213 11 F.Supp.2d at 1158-59. Cybernet had actual knowledge of direct infringement 12 and materially contributed to such infringement by continuing to provide 13 advertising services and paying commissions to webmasters in its network. 213 14 F.Supp.2d at 1169-70. 15 This case would not be the first time that a party supplying advertising to 16 direct infringers would be held contributorily liable for copyright infringement. 17 In Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc., 256 F.Supp. 18 399 (S.D.N.Y. 1966) (advertiser had actual notice of infringing songs on 19 bootleg album and the low price of the album was a red flag of infringement, 20 yet advertiser continued to earn commission by purchasing radio time for the 21 infringing album). 22 In contributory liability cases such as these, maintenance and 23 enforcement of a repeat infringer policy, or lack thereof, is important. See 24 BMG Rights Management v. Cox Communications, __ F.Supp.3d __, 2015 WL 25 7756130 (E.D. Va. 2015) (ISP lost its protections under the DMCA because it 26 failed to maintain a log of information contained in infringement notices and 27 failed to terminate repeat infringers under appropriate circumstances); Capitol 28 Records, LLC v. Escape Media Group Inc., 2015 WL 1402049 (S.D.N.Y. 2015)-15-Motion for Preliminary Injunction – Memorandum 1 (defendant lost DMCA protections because it failed to keep adequate records of 2 infringement notices or terminate repeat infringers). 3 Here, there can be no doubt that Tiger had actual notice of infringements 4 on its client sites. Steve Easton sent numerous notifications to Tiger setting 5 forth the web pages on JuicyAds Publisher sites containing ALS infringements. 6 Further, Tiger had constructive notice of infringements. Its own principal, 7 Juicy Jay, admitted that he can look at a Publisher site and tell whether it has 8 stolen content. Imgchili.net, the subject of nearly two hundred infringement 9 notices, patently maintained a system where it paid users to upload infringing 10 works, yet it lingered as a Publisher in the JuicyAds network even after many 11 notices. JuicyAds even admitted stolenalspictures.com as a Publisher in its 12 network, even though the site proclaims that it displays stolen content and seeks 13 to profit from infringement. 14 Similarly, Tiger materially contributed to the infringing conduct of its 15 Publishers. Tiger built and maintained a "network," a "marketplace," a 16 "community" and a "platform" of Users, Publishers who sell traffic and 17 Advertisers who buy traffic from Publishers. Tiger requires potential users to 18 apply for membership in its network. Tiger advertises, and provides valuable 19 search tools and data regarding, each of its Publishers. Tiger’s search tools 20 allowed ALS to find numerous additional cases of repeat infringement of ALS 21 works by Publishers in the JuicyAds’ network. Tiger provides customer service 22 and detailed technical support for its Users. Tiger provides code that permits 23 Publishers to put JuicyAds ads on their sites, next to infringing content. 24 JuicyAds serves the ads on Publisher sites, then redirects traffic to purchasing 25 Advertisers when a consumer clicks on the JuicyAds ad. Tiger charges 26 Advertisers and pays Publishers for this traffic. 27 Juicy Jay initially admitted that his own Terms of Service required Tiger 28 to terminate repeat infringers. However, when Juicy Jay realized that the policy-16-Motion for Preliminary Injunction – Memorandum 1 cost Tiger money, he orchestrated a Tiger policy of ignoring infringement 2 notices and failing to enforce Tiger’s own repeat infringer policy. It was only 3 when Tiger realized it had been sued for ignoring its own repeat infringer policy 4 that Tiger enforced the policy. 5 Tiger maintained the online version of a flea market and provided 6 numerous services to Users, just as in Fonovisa. Tiger maintained a network of 7 users and webmasters that it assisted and advertised, just as in Napster and 8 Cybernet Ventures. Tiger rendered advertising services to companies patently 9 engaging in infringing conduct, just as in Mark-Fi Records. 10 Tiger may say it can ignore its own repeat infringer policy with impunity 11 because the infringing ALS works did not reside on or pass through Tiger’s 12 servers. They would not be right. First, Tiger admits on its DMCA page that it 13 can "remove or block access to material that it believes in good faith to be 14 copyrighted material that has been illegally copied and distributed." Second, in 15 the online world, courts have not constrained contributory liability for copyright 16 infringement to a strict server test. In Metro-Golden-Mayer Studios, Inc. v. 17 Grokster, Ltd. 545 U.S. 913, 125 S.Ct. 2764 (2005), Grokster was held 18 secondarily liable for distributing software that enabled users to locate 19 infringing files on a peer-to-peer network even though said files did not reside 20 on or pass through a Grokster server. In Perfect 10, Inc. v. Amazon.com, Inc., 21 487 F.3d 701 (9th Cir. 2007), Perfect 10, also an adult content provider, sought 22 to hold Google secondarily liable for direct copyright infringement by 23 providing users with the means to search for and locate infringing content. 24 There, even though Google did not itself host the infringing sites, the court 25 held: 26 "There is no dispute that Google substantially assists websites to 27 distribute their infringing copies to a worldwide market and assists 28 a worldwide audience of users to access infringing materials....-17-Motion for Preliminary Injunction – Memorandum 1 [Therefore,] Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using 2 its search engine, could take simple measures to prevent further 3 damage to Perfect 10's copyrighted works, and failed to take such steps." 4 487 F.3d at 729. Similarly, in Cybernet Ventures, supra, Cybernet Ventures did 5 not itself serve the infringing images, but rather, like Tiger, maintained a 6 network of client sites which actually hosted the infringing images. 213 7 F.Supp.2d at 1158-59, 1169-70. See also Capitol Records, Inc. v. MP3Tunes, 8 LLC, 48 F.Supp.3d 703, 713 (S.D.N.Y. 2014) (principal of MP3Tunes and 9 related Sideload service was contributorily liable for copyright infringement 10 because he had knowledge that user were storing infringing MP3 files through 11 MP3Tunes and Sideload, encouraged use of the system, was aware of takedown 12 notices and formulated company policy to ignore certain notices). 13 Tiger may say that it provides no material contribution to infringement 14 merely because it enables infringers to monetize illegal conduct. Perfect 10 v. 15 Visa Intern. Service Ass’n, 494 F.3d 788 (9th Cir. 2007). Tiger certainly does 16 enable its Publishers to profit from infringement, but it does much more. Visa’s 17 business relationship was with merchant banks, not websites with 18 infringements. Tiger has formed a direct client relationship with Publishers, 19 who publish infringing content in a network created and maintained by Tiger. 20 Tiger admits that it can "remove or block access to material that it believes in 21 good faith to be copyrighted material that has been illegally copied and 22 distributed." Visa could not. Tiger maintains search functions on its website 23 that can "assist or enable Internet users to locate infringing material." 494 F.3d 24 at 797. Visa did not. Here, "’it would be difficult for the [Publishers’] 25 infringing activity to take place in the massive quantities alleged without the 26 support services provided by [Tiger]." 494 F.3d at 798, citing Fonovisa, supra. 27 Visa did not provide comparable support services. Tiger has created a "virtual" 28-18-Motion for Preliminary Injunction – Memorandum 1 "centralized place... where infringing works could be collected, sorted [and] 2 found." 494 F.3d at 798. Visa did not. Here, Tiger "advertise[s] [and] 3 otherwise promote[s]" its Publisher websites. 494 F.3d at 799-800. Visa did 4 not. Tiger constructed and maintained a network in which it encouraged 5 Publishers to become clients. Visa did not. Tiger served ads on the Publisher 6 sites. Visa did not. Tiger transported traffic driven to its servers from Publisher 7 sites to purchasing Advertisers. Visa did not. Tiger directly paid Publishers. 8 Visa did not. Tiger admitted into its network a site that proclaimed it published 9 stolen content. Visa did not. Tiger said it would terminate repeat infringers. 10 Visa did not say that. Tiger ignored its own policy. Visa did not. This case is 11 distant from Visa. 12 B. ALS is Likely to Succeed Under the "Inducement" Prong of 13 Contributory Liability. 14 "[O]ne who distributes a device with the object of promoting its use to 15 infringe copyright, as shown by clear expression or other affirmative steps 16 taken to foster infringement, is liable for the resulting acts of infringement by 17 third parties." Metro-Golden-Mayer Studios, Inc. v. Grokster, Ltd. 545 U.S. 18 913, 936-37, 125 S.Ct. 2764 (2005) (distributor of software enabling search and 19 download of infringing files through peer-to-peer network). Since the Grokster 20 court drew this doctrine from patent law, and since "[u]nlike patents, copyrights 21 protect expression, not products or devices," inducement liability extends to 22 provision of not only software but also services. Columbia Pictures Industries 23 Inc. v. Fung, 710 F.3d 1020, 1033 (9th Cir. 2013) (Fung provided torrent files 24 that enabled users to search for and download infringing works stored on 25 other’s computers). 26 This case is akin to Grokster and Fung. In those two cases, as in this 27 one, Tiger made no effort to use "filtering tools or other mechanisms" to detect 28 infringing activity by Publishers. 710 F.3d at 1035, citing Grokster, 545 U.S. at-19-Motion for Preliminary Injunction – Memorandum 1 939. Indeed, the JuicyAds system is so lacking in any form of filter or 2 monitoring that a Publisher can gain access to the network even when 3 proclaiming that its site features stolen content. Here, as in Grokster and Fung, 4 Tiger "’makes money by selling advertising space’" and thus relies upon 5 "‘high-volume use." 710 F.3d at 1035, citing Grokster, 545 U.S. at 940. 6 JuicyAds encouraged Publishers to join its network in droves. JuicyAds touts 7 the speedy and automated nature of its signup process, resulting in JuicyAds’ 8 network containing "172,000+ websites and 92,000+ clients, and more joining 9 daily." Realizing that enforcement of its own repeat infringer policy cost 10 money, and knowing that sites with infringement could be detected at a glance, 11 JuicyAds employed zero discretion in taking in Publishers and signaled to its 12 Publishers that it would not enforce its repeat infringer policy. 13 Tiger and Juicy Jay manifested a sophisticated understanding of 14 copyright law, including direct and contributory liability, yet made a decision to 15 ignore infringement notices and encourage Publishers to continue use of 16 JuicyAds’ system. Tiger’s heedless intake of Publishers, even evident 17 infringers, together with its refusal to terminate repeat infringers, induced a 18 continuous cycle of infringement by its Publishers. The best example is 19 imgchili.net. Tiger received nearly two hundred notifications of infringement 20 on imgchili.net. Imgchili.net pays for page views, a clear signal that users were 21 not uploading their vacation pictures but rather infringing content that would 22 induce page views. Tiger’s policies encouraged a continuous cycle of notice 23 from ALS, nominal take down and repeat infringement, relegating ALS to a 24 frustrating and never-ending game of "whack-a-mole" trying to stop this 25 chronic cycle of infringement. A jury would likely find Tiger liable for 26 inducing infringement under these circumstances. 27 28-20-Motion for Preliminary Injunction – Memorandum 1 II. ALS HAS SHOWN A LIKELIHOOD OF SUCCESS ON ITS 2 CLAIM AGAINST TIGER MEDIA FOR VICARIOUS 3 COPYRIGHT INFRINGEMENT. 4 Vicarious copyright liability exists where a defendant "’has the right and 5 ability to supervise the infringing activity and also has a direct financial interest 6 in such activities.’" Napster, 239 F.3d at 1022, quoting Fonovisa, 76 F.3d at 7 262. 8 The right and ability to supervise infringing activity is not limited by a 9 strict server test; "right and ability to supervise" extends beyond the ability to 10 pull a work off the Internet, and exists where the defendant has retained the 11 right to police or terminate accounts engaged in copyright infringement. 12 Cybernet had the right and ability to supervise the infringing activity because 13 Cybernet retained the right to admit webmasters into, and terminate them from, 14 its network, even though the infringing images did not reside on Cybernet 15 servers. Cybernet, 213 F.Supp.2d at 1173-74. See also Napster, supra, 239 16 F.3d at 1023; Fonovisa, 76 F.3d at 263-64. 17 "Financial benefit exists where the availability of infringing material 18'acts as a "draw" for customers.’" Napster, 239 F.3d at 1023, quoting 19 Fonovisa, 76 F.3d at 263-64. 20 Advertising companies have been found liable for vicarious copyright 21 infringement. See Davis. v. E.I. DuPont de Nemours & Co., 240 F.Supp. 612 22 (S.D.N.Y. 1965) (sponsor of infringing television show and its advertising 23 agency were vicariously liable for copyright infringement). 24 Here, Tiger had the right and ability to supervise the infringing activity, 25 in that, just as in Napster and Cybernet, it retained the right and ability to 26 terminate a Publisher from its network. Tiger had the requisite ability even 27 though the infringing images resided on Publisher websites. Further, Tiger had 28 a direct financial interest in the infringing activity, in that it continued to earn-21-Motion for Preliminary Injunction – Memorandum 1 money from placing ads on Publisher sites that relied upon the draw of 2 infringing content. A jury would likely find Tiger liable for vicarious 3 infringement under these circumstances. 4 III. ALS IS LIKELY TO PREVAIL ON ITS CLAIMS FOR SECONDARY 5 TRADEMARK INFRINGEMENT. 6 One may be secondarily liable for trademark infringement when it 7 "continue[s] to supply its services to one who it knew or had reason to know 8 was engaging in trademark infringement." Louis Vuitton Malletier v. Akanoc 9 Solutions, Inc., 658 F.3d 936 (9th Cir. 2011). There, a web host and its manager 10 were secondarily liable in connection with sale of products infringing on the 11 Louis Vuitton mark on hosted sites. 12 Here, although Tiger did not literally host the Publisher sites, it had the 13 requisite degree of control over such sites in that it retained the ability to 14 terminate any Publisher from its network. Cf. Napster, Cybernet Ventures, 15 supra. Tiger maintained Publishers within its network and continued to provide 16 advertising services and payments even after repeated actual notification that 17 Publisher sites were engaging in trademark infringement. 18 IV. ALS HAS SHOWN IRREPARABLE HARM IN THE ABSENCE 19 OF INJUNCTIVE RELIEF. 20 Irreparable harm justifying injunctive relief may be demonstrated by: 21 substantial loss of business, Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 22 S.Ct. 2561, 2568 (1975); loss of current or future market share, Grand River 23 Enterprises Six Nations, Ltd. v. Pryor, 481 F.3d 60, 67 (2d Cir. 2007); damage 24 to goodwill of a business, Rent-A-Center, Inc. v. Canyon Television and 25 Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991); or injury to 26 reputation. United Healthcare Ins. Co. v. Advance-PCS, 316 F.3d 737, 741 (8th 27 Cir. 2002). Additionally, damages from copyright infringement may be 28 difficult to prove. Omega Importing Corp. v. Petri–Kine Camera Co., 451 F.2d-22-Motion for Preliminary Injunction – Memorandum 1 1190, 1195 (2d Cir. 1971) (courts tend to issue injunctions in the copyright 2 context because "to prove the loss of sales due to infringement is... 3 notoriously difficult"). 4 Here, ALS has shown steady decline in revenues, profits and market 5 share directly attributable to chronic piracy on the Internet. The pervasive 6 presence of infringing ALS images on sites in the JuicyAds’ network has 7 damaged ALS’s goodwill and reputation. Its losses from the chronic 8 infringement tolerated by Tiger may be hard to prove at trial. 9 V. THE BALANCE OF EQUITIES TIP SHARPLY IN FAVOR OF 10 ALS. 11 In Napster the equities tipped in favor of the record companies due to the 12 evidence that thousands of infringing files belonging to the plaintiffs were 13 downloaded through the Napster system. Napster’s lament that the proposed 14 injunction would eviscerate its business did not tip the balance in its favor. 15 Napster, 114 F.Supp.2d at 926-27. See also WPIX, Inc. v. ivi, Inc., 765 16 F.Supp.2d 594, 621 (S.D.N.Y. 2011) ("Having found that [defendant] has 17 infringed plaintiffs' copyrights, it follows that [defendant] is not legally harmed 18 by the fact that it cannot continue streaming plaintiffs' programming, even if 19 this ultimately puts [defendant] out of business."). 20 Similarly, in Cybernet Ventures, the equities tipped in favor of Perfect 21 10, the party whose works were infringed: 22 "Cybernet profits from the infringing and unlawful activities of its 23 webmasters without shouldering any of the undesired burdens 24 associated with protection of intellectual property rights. The Court 25 finds this willful blindness harms Perfect 10... and skews the 26 online adult market." 27 Cybernet, 213 F.Supp.2d at 1191. 28-23-Motion for Preliminary Injunction – Memorandum 1 Here, ALS will be injured absent injunctive relief. Chronic infringement 2 of ALS works has occurred on the JuicyAds’ network, wholly ignored by 3 JuicyAds. Tiger has admitted a proclaiming infringer of ALS work, refused to 4 enforce its repeat infringer policy, refused to review its own Publishers for red 5 flags of infringement and is likely to admit other infringers of ALS work as 6 Publishers. On the other hand, the relief sought by ALS merely requires Tiger 7 to enforce its already existing Terms of Service. 8 VI. THE PUBLIC INTEREST FACTOR IS EITHER NEUTRAL OR 9 WEIGHS IN FAVOR OF ALS. 10 Where an injunction only reaches private parties, public interest may be a 11 neutral factor. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009). 12 It is always in the public interest to protect constitutional rights. Cf. Melendres 13 v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (Fourth Amendment rights). 14 Here, the public interest factor is either neutral or in favor of ALS. 15 VII. THE REQUESTED INJUNCTIVE RELIEF IS WARRANTED. 16 The relief requested herein is not unlike that ordered in Cybernet, supra, 17 where the court not only barred Cybernet and its participating webmasters from 18 displaying content the rights to which were held by Perfect 10 ("Prohibited 19 Content"), but Cybernet and those acting in concert with it were required to: 1) 20 review websites prior to admission to the Cybernet network not only for 21 Prohibited Content but also red flags of infringement; 2) review on a monthly 22 basis the content on any participating website that had removed content based 23 on a notification of infringement and had not submitted a counter-notification of 24 rights to the content in question, for evidence of Prohibited Content; 3) within 25 ninety days review the content of each participating website for reasonably 26 identifiable Prohibited Content; and 4) file with the court and serve on Perfect 27 10 periodic reports of compliance with the order. Cybernet, 213 F.Supp.2d at 28 1194-95.-24-Motion for Preliminary Injunction – Memorandum 1 VIII. THE COURT SHOULD ORDER NO, OR A MINIMAL, BOND. 2 ALS has demonstrated a high likelihood of success and profound 3 irreparable injury. The Court should not erect a practical barrier to the relief to 4 which ALS is entitled by ordering an unaffordable bond. ALS urges a zero or 5 nominal bond. GoTo.com, Inc. v. Walt Disney, 202 F.3d 1199, 1211 (9th Cir. 6 2002) (court properly ordered nominal bond where higher amount would 7 effectively preclude injunctive relief). 8 CONCLUSION 9 ALS urges the Court to order a preliminary injunction in the form 10 submitted concurrently. 11 12 DATED: July 25, 2016 SPILLANE TRIAL GROUP PLC 13 14 By: _____________________________ 15 Jay M. Spillane 16 Attorneys for Plaintiff ALS Scan, Inc. 17 18 19 20 21 22 23 24 25 26 27 28-25-Motion for Preliminary Injunction – Memorandum

DECLARATION of Jay M. Spillane in support of NOTICE OF MOTION AND MOTION for Preliminary Injunction re Against Tiger Media. Motion {{9}} filed by Plaintiff ALS Scan, Inc.

1 Jay M. Spillane (Bar No. 126364) jspillane@spillaneplc.com 2 SPILLANE TRIAL GROUP PLC 3 468 N. Camden Drive Second Floor 4 Beverly Hills, CA 90210 (424) 217-5980 5 (888) 590-1683 (fax) 6 Attorneys for Plaintiff ALS Scan, Inc. 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ALS SCAN, INC., a Maryland Case No.: 2:16-cv-05051 11 corporation, DECLARATION OF JAY M. SPILLANE IN SUPPORT OF 12 MOTION BY PLAINTIFF ALS Plaintiff, SCAN, INC. FOR A PRELIMINARY 13 INJUNCTION 14 vs. [Filed Concurrently: Motion and 15 Notice; Memorandum; Easton CLOUDFLARE, INC., a Delaware Declaration, Penn Declaration, Walsh 16 corporation; TIGER MEDIA, INC., a Declaration; Notice of Manual Filing, Saskatchewan provincial corporation; (Proposed) Preliminary Injunction] 17 GERARDUS VAN GINNEKEN aka Date: September 8, 2016 18 "JUICY JAY," an individual; and DOES Time: 8:30 a.m. 19 1-10, inclusive, Place: Courtroom 10 312 N. Spring Street 20 Defendants. Los Angeles, CA 21 22 23 24 25 26 27 28 Motion for Preliminary Injunction – Spillane Declaration 1 I, Jay M. Spillane, declare: 2 1. I am a member of the Bar of the State of California. I am counsel 3 for Plaintiff ALS Scan, Inc. The following facts are stated on my personal 4 knowledge. 5 2. I am informed and believe that Tiger Media, Inc. owns the 6 JuicyAds advertising program. I base this belief on the following information. 7 3. Attached hereto as Exhibit 1 is a true and correct copy of the 8 Certificate of Registration from the United States Patent and Trademark Office 9 for the mark "JuicyAds" in relation to "Ad serving, namely, placing 10 advertisements on websites for others using specialized computer software." 11 The registration says the owner is Tiger Media, Inc., P.O. Box 37204, 12 Saskatchewan, Canada S4S 7K4. 13 4. Attached hereto as Exhibit 2 is a true and correct screenshot from 14 the United States Patent and Trademark Office’s search utility, showing that the 15 attorney for the "JuicyAds" trademark registration was Marc J. Randazza. 16 5. JuicyAds’ Terms of Service, ¶ XV, sets forth Saskatchewan, 17 Canada law and venue for disputes. 18 6. Attached hereto as Exhibit 3 is a true and correct copy of the web 19 page www.tigermedia.ca, which says "Tiger Media is an advertising brokerage 20 based in Regina, Saskatchewan. Our innovative company is a leader in 21 business to business advertising services for digital online properties." 22 7. Attached hereto as Exhibit 4 is a true and correct copy of 23 http://www.tigermedia.ca/contact/, the Contact page for Tiger Media, Inc., 24 reflecting the same contact address as reflected on the Certificate of 25 Registration, Ex. 3. The contact email address is jay@tigermedia.ca. 26 8. Attached hereto as Exhibit 5 is a true and correct copy of a 27 Corporate Registry report I received from Information Services Corporation, a 28 Canadian company that provides information pertaining to federal and-1-Motion for Preliminary Injunction – Spillane Declaration 1 provincial Canadian corporations. The service provided is like the business 2 registration information services provided by secretaries of state in the U.S. 3 The Corporate Registry for Tiger Media, Inc. has the same address reflected on 4 the trademark registration and says that the business of Tiger is "Advertising, 5 Marketing." 6 9. Shortly after the Complaint was filed I received a call from 7 attorney Corey Silverstein, who identified himself as counsel for Tiger Media 8 and "Juicy Jay." We have discussed Tiger’s willingness to terminate the nine 9 sites listed in the Complaint from its network and the merits of the case. The 10 proposition that Tiger owns and operates "JuicyAds" has not been an issue in 11 the discussions. 12 10. Mr. Silverstein sent me a July 18, 2016 email in which he said "my 13 clients [Tiger Media and'Juicy Jay’] have already suspended the accounts of 14 the publishers referenced in your complaint. Please include a copy of this email 15 in any filing that you make with the District Court seeking injunctive relief." A 16 true and correct copy of this email is attached hereto as Exhibit 6. 17 18 I declare under penalty of perjury under the laws of the United States and 19 the State of California that the foregoing is true and correct. This declaration 20 was executed on July 25, 2016 at Los Angeles, California. 21 22 23 24 25 ________________________________ 26 Jay M. Spillane 27 28-2-Motion for Preliminary Injunction – Spillane Declaration

NOTICE OF MOTION AND MOTION to Dismiss First Amended Complaint for Failure to State a Claim on which Relief can be Granted filed by Defendant Tiger Media, Inc. Motion set for hearing on 10/3/2016 at 08:30 AM before Judge George H. Wu.

Case 2:16-cv-05051-GW-AFM Document 35 Filed 09/05/16 Page 1 of 3 Page ID #:730 Gary L. Bostwick (Bar. No. 79000) 1 gbostwick@B1Law.com 2 BOSTWICK LAW 12400 Wilshire Blvd., Ste. 400 3 Los Angeles, CA 90025 (310) 979-6059 4 5 Corey D. Silverstein (appearing pro hac vice) corey@silversteinlegal.com 6 Kevin S. Toll (appearing pro hac vice) kevin@silversteinlegal.com 7 SILVERSTEIN LEGAL 8 30150 Telegraph Rd., Ste. 444 Bingham Farms, MI 48025 9 (248) 290-0655 10 Lawrence G. Walters (appearing pro hac vice) 11 larry@firstamendment.com WALTERS LAW GROUP 12 195 W. Pine Ave. Longwood, FL 32750 13 (407) 975-9150 14 Attorneys for Defendant Tiger Media Inc. 15 UNITED STATES DISTRICT COURT 16 CENTRAL DISTRICT OF CALIFORNIA 17 WESTERN DIVISION 18 ALS SCAN, INC., Case No. 2:16-cv-05051-GW-AFM 19 Plaintiff, Defendant Tiger Media Inc.’s Notice 20 of Motion and Motion to Dismiss v. Plaintiff’s First Amended Complaint 21 for Failure to State a Claim CLOUDFLARE, INC., et al., 22 Date: October 3, 2016 23 Defendants. Time: 8:30 a.m. Place: Courtroom 10 24 Judge: Hon. George H. Wu Case 2:16-cv-05051-GW-AFM Document 35 Filed 09/05/16 Page 2 of 3 Page ID #:731 1 To All Parties and Their Attorneys of Record: 2 Please take notice that on October 3, 2016 at 8:30 a.m., or as soon afterwards as 3 the parties may be heard, Defendant Tiger Media Inc. will move the Court, at the 4 United States Courthouse for the Central District of California, Western Division, 5 312 North Spring Street, Los Angeles, California, Courtroom 10, through its attor-6 neys, for dismissal of the First Amendment Complaint of Plaintiff ALS Scan, Inc. in 7 accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to 8 state a claim on which relief can be granted. 9 The Court must dismiss the First Amended Complaint for failure to state a claim 10 against Defendant Tiger Media Inc. on which relief can be granted, in that the First 11 Amended Complaint fails to contain sufficient factual matter to state a claim to relief 12 that is plausible on its face and the Ninth Circuit has summarily rejected Plaintiff’s 13 theories as a matter of law in Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788 (9th 14 Cir. 2007). As the supporting Memorandum of Points and Authorities accompanying 15 this Motion more fully explains, Plaintiff cannot establish as a matter of law that De-16 fendant Tiger Media Inc.: 17 1. materially contributed to any copyright infringement [contributory copy-18 right infringement], 19 2. distributed its advertising network with the object of promoting its use to 20 infringe copyrights [inducement theory of copyright infringement], 21 3. had the requisite right and ability to control infringing activity by third-22 party publishers and had a direct financial interest in the alleged infringe-23 ment [vicarious copyright infringement], and 24 2 Case 2:16-cv-05051-GW-AFM Document 35 Filed 09/05/16 Page 3 of 3 Page ID #:732 1 4. intentionally induced any publisher to infringe Plaintiff’s trademarks or had 2 direct control and monitoring of the instrumentality used by a third party 3 to infringe [contributory trademark infringement and unfair competition]. 4 As a result, Plaintiff’s claims against Defendant Tiger Media Inc. must be dismissed. 5 This Motion is based on this Notice of Motion and Motion, the accompanying 6 Memorandum of Points and Authorities, and the pleadings and papers on file in this 7 action. 8 This Motion is made after the conference of counsel in accordance with C.D. Cal. 9 L.R. 7-3, which took place on August 31, 2016, but which did not resolve the issues 10 raised by this Motion. 11 Therefore, Defendant Tiger Media Inc. respectfully requests that the Court: 12 1. Dismiss Plaintiff’s First Amended Complaint against Defendant Tiger 13 Media Inc. with prejudice; 14 2. Award Defendant Tiger Media Inc. its costs and attorney fees incurred in 15 defending this lawsuit; and 16 3. Award Defendant Tiger Media Inc. any other relief to which it is entitled. 17 Dated: September 5, 2016 18 Respectfully submitted, 19 By:/s/Kevin S. Toll KEVIN S. TOLL (appearing pro hac vice) 20 SILVERSTEIN LEGAL 21 Attorneys for Defendant Tiger Media Inc. 22 23 24 3

MEMORANDUM in Support of NOTICE OF MOTION AND MOTION to Dismiss First Amended Complaint for Failure to State a Claim on which Relief can be Granted {{35}} filed by Defendant Tiger Media, Inc.

Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 1 of 32 Page ID #:736 Gary L. Bostwick (Bar. No. 79000) 1 gbostwick@B1Law.com 2 BOSTWICK LAW 12400 Wilshire Blvd., Ste. 400 3 Los Angeles, CA 90025 (310) 979-6059 4 5 Corey D. Silverstein (appearing pro hac vice) corey@silversteinlegal.com 6 Kevin S. Toll (appearing pro hac vice) kevin@silversteinlegal.com 7 SILVERSTEIN LEGAL 8 30150 Telegraph Rd., Ste. 444 Bingham Farms, MI 48025 9 (248) 290-0655 10 Lawrence G. Walters (appearing pro hac vice) 11 larry@firstamendment.com WALTERS LAW GROUP 12 195 W. Pine Ave. Longwood, FL 32750 13 (407) 975-9150 14 Attorneys for Defendant Tiger Media Inc. 15 UNITED STATES DISTRICT COURT 16 CENTRAL DISTRICT OF CALIFORNIA 17 WESTERN DIVISION 18 ALS SCAN, INC., Case No. 2:16-cv-05051-GW-AFM 19 Plaintiff, Memorandum of Points and Authori-20 ties in Support of Motion by Defend-v. ant Tiger Media Inc. to Dismiss Plain-21 tiff’s First Amended Complaint for CLOUDFLARE, INC., et al., Failure to State a Claim 22 23 Defendants. Date: October 3, 2016 Time: 8:30 a.m. 24 Place: Courtroom 10 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 2 of 32 Page ID #:737 1 Table of Contents 2 Table of Authorities.............................................................................................. iii 3 Introduction............................................................................................................ 1 4 Background............................................................................................................ 2 5 Standard of Review................................................................................................. 5 6 Argument............................................................................................................... 6 7 I. ALS fails to state a claim for contributory or vicarious copyright 8 infringement that is plausible on its face....................................................... 6 9 A. ALS fails to state a claim for contributory infringement because 10 it cannot allege that Tiger has materially contributed to any 11 copyright infringement........................................................................ 7 12 B. ALS fails to state a claim for inducement liability as a matter of 13 law.................................................................................................... 14 14 C. ALS cannot adequately plead a basis for Tiger’s vicarious liability 15 for copyright infringement................................................................ 15 16 1. ALS fails to adequately allege that Tiger has the requisite 17 right and ability to supervise and control infringing activity 18 by publishers........................................................................... 16 19 2. As a matter of law, Tiger does not have a direct financial 20 interest in the alleged infringement......................................... 19 21 II. ALS fails to state a claim for contributory trademark infringement............ 22 22 A. ALS cannot allege that Tiger intentionally induced any publisher 23 to infringe ALS’s trademarks........................................................... 22 24 i Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 3 of 32 Page ID #:738 1 B. ALS cannot allege that Tiger had direct control and monitoring 2 of the instrumentality used by a third party to infringe...................... 23 3 III. ALS fails to state a claim for unfair competition as a matter of law............. 24 4 Conclusion........................................................................................................... 24 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ii Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 4 of 32 Page ID #:739 1 Table of Authorities 2 Cases 3 A&M Records, Inc. v. Napster, Inc., 4 239 F.3d 1004 (9th Cir. 2001)..................................................................... passim 5 Adobe Sys. Inc. v. Canus Prods., Inc., 6 173 F. Supp. 2d 1044 (C.D. Cal. 2001)......................................................... 20, 21 7 Ashcroft v. Iqbal, 8 556 U.S. 662 (2009)....................................................................................... 6, 16 9 Bell Atl. Corp. v. Twombly, 10 550 U.S. 544 (2007)............................................................................................ 6 11 Cleary v. News Corp., 12 30 F.3d 1255 (9th Cir. 1994).............................................................................. 24 13 Columbia Pictures Indus., Inc. v. Fung, 14 710 F.3d 1020 (9th Cir. 2013)....................................................................... 14, 15 15 Dunn v. Castro, 16 621 F.3d 1196 (9th Cir. 2010).............................................................................. 4 17 Ellison v. Robertson, 18 357 F.3d 1072 (9th Cir. 2004).................................................................. 8, 20, 21 19 Elsevier Ltd. v. Chitika, Inc., 20 826 F. Supp. 2d 398 (D. Mass. 2011)................................................................. 13 21 Fonovisa, Inc. v. Cherry Auction, Inc., 22 76 F.3d 259 (9th Cir. 1996)......................................................................... passim 23 24 iii Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 5 of 32 Page ID #:740 1 Inwood Labs., Inc. v. Ives Labs., Inc., 2 456 U.S. 844 (1982)..................................................................................... 22, 23 3 Japan Telecom, Inc. v. Japan Telecom Am. Inc., 4 287 F.3d 866 (9th Cir. 2002)............................................................................ 24 5 Ko v. Eva Airways Corp., 6 42 F. Supp. 3d 1296 (C.D. Cal. 2012).................................................................. 5 7 Livnat v. Lavi, 8 No. 96-4967, 1998 WL 43221 (S.D.N.Y. Feb. 2, 1998)................................... 8, 14 9 Lockheed Martin Corp. v. Network Sols., Inc., 10 194 F.3d 980 (9th Cir. 1999).............................................................................. 23 11 Louis Vuitton Malletier, S.A. v. Akanoc Sols., Inc., 12 658 F.3d 936 (9th Cir. 2011).......................................................................... 9, 23 13 McRO, Inc. v. Namco Bandai Games Am., Inc., 14 23 F. Supp. 3d 1113 (C.D. Cal. 2013).................................................................... 5 15 Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 16 545 U.S. 913 (2005).................................................................................... passim 17 Miller v. Facebook, Inc., 18 No. 10-00264, 2010 WL 1292708 (N.D. Cal. Mar. 31, 2010)....................... 14, 18 19 Neitzke v. Williams, 20 490 U.S. 319 (1989)............................................................................................. 5 21 Newborn v. Yahoo!, Inc., 22 391 F. Supp. 2d 181 (D.D.C. 2005).............................................................. 14, 22 23 24 iv Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 6 of 32 Page ID #:741 1 Parker v. Google, Inc., 2 422 F. Supp. 2d 492 (E.D. Pa. 2006), aff’d, 242 F. App’x 833 (3d Cir. 2007).... 21 3 Perfect 10, Inc. v. Amazon.com, Inc., 4 508 F.3d 1146 (9th Cir. 2007)..................................................................... passim 5 Perfect 10, Inc. v. CCBill LLC, 6 488 F.3d 1102 (9th Cir. 2007)........................................................................... 24 7 Perfect 10, Inc. v. Google, Inc., 8 No. 04-9484, 2010 WL 9479060 (C.D. Cal. July 30, 2010)................................ 21 9 Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 10 494 F.3d 788 (9th Cir. 2007)...................................................................... passim 11 Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 12 No. 04-0371, 2004 WL 1773349 (C.D. Cal. Aug. 5, 2004)................................... 8 13 Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 14 907 F. Supp. 1361 (N.D. Cal. 1995)..................................................................... 9 15 Routt v. Amazon.com, Inc., 16 584 F. App’x 713 (9th Cir. 2014)............................................................ 16, 18, 19 17 Sarvis v. Polyvore, Inc., 18 No. 12-12233, 2013 WL 4056208 (D. Mass. Aug. 9, 2013)................................. 21 19 UMG Recordings, Inc. v. Shelter Capital Partners LLC, 20 718 F.3d 1006 (9th Cir. 2013)............................................................................. 14 21 Statutes 22 17 U.S.C. § 512................................................................................................... 4, 7 23 Cal. Bus. & Prof. Code § 17200............................................................................ 24 24 v Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 7 of 32 Page ID #:742 1 Rules 2 Fed. R. Civ. P. 8................................................................................................... 16 3 Fed. R. Civ. P. 12(b)(6).................................................................................. passim 4 Treatises 5 Ian C. Ballon, 6 E-Commerce and Internet Law (2015 update)........................................................ 7 7 Melville B. Nimmer & David Nimmer, 8 Nimmer on Copyright (2015)................................................................................. 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 vi Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 8 of 32 Page ID #:743 1 Introduction 2 ALS Scan, Inc. is a producer of adult content who wants this Court to expand 3 secondary liability for copyright infringement and trademark infringement far be-4 yond the limits set by the Supreme Court and the Ninth Circuit. ALS seeks to impose 5 contributory and vicarious copyright and contributory trademark infringement liabil-6 ity on Tiger Media Inc., an online advertising network known as JuicyAds, because 7 it "serves" ads on sites that allegedly infringe ALS’s copyrights and trademarks. 8 ALS bases its entire First Amended Complaint ("FAC") on the allegation that 9 copies of photographs it owns appeared on several third-party sites without its per-10 mission. ALS does not allege its photos appeared on JuicyAds.com (because they 11 never did) or pass over Tiger’s ad network (because they don’t). Nor does ALS al-12 lege that Tiger has the ability to actually disable access to its photos (because it can’t). 13 Rather, ALS alleges in a conclusory fashion that Tiger is liable because the sites 14 where ALS’s photos appeared were JuicyAds "publishers," some of more than 15 92,000 businesses and individuals that participate in the JuicyAds ad network. The 16 Ninth Circuit summarily rejected this theory as a matter of law in Perfect 10, Inc. v. 17 Visa Int’l Serv. Ass’n, 494 F.3d 788 (9th Cir. 2007). 18 As the FAC acknowledges, the relationship between Tiger and the participating 19 publishers is purely contractual. JuicyAds, like countless other ad networks, merely 20 allows third-party publishers to place third-party ads on their sites, and for third-21 party advertisers to buy the ad space. JuicyAds’s Terms of Service ("TOS") states 22 that publishers are "solely responsible" for the content of their own sites, including 23 infringement of intellectual-property rights, and that JuicyAds has "no control" of 24 1 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 9 of 32 Page ID #:744 1 publishers’ sites or content. In short, the TOS provides Tiger no right or ability to 2 control publishers or the content of their sites. 3 This Court should dismiss ALS’s claims against Tiger with prejudice. Taking 4 into account the actual contract terms between Tiger and participating publishers, 5 ALS has not and cannot assert any claims for contributory or vicarious liability, given 6 that Tiger has no more control over publishers’ sites than it does over any other 7 third-party sites. ALS has altogether failed to allege any other grounds to support 8 secondary liability here. 9 Background 10 Tiger is an online advertising broker. See FAC ¶ 43. Tiger acts as a middleman 11 between advertisers who purchase ad space, and publishers who operate independ-12 ent websites. See id. Tiger pays publishers for the right to serve third-party ads on 13 their sites, much as a media buyer might pay the owner of a billboard to display ads 14 for its clients. Publishers and advertisers’ use their own independent hosting, do-15 mains, software, and other infrastructure to operate their websites and distribute 16 their content. 17 To do this, Tiger created an online advertising network called JuicyAds, see id. at 18 ¶ 11, which is a self-serve platform that automates the delivery of ads to publisher 19 sites. The platform also provides a marketplace displaying ad spots for sale on pub-20 lisher sites, see id. at ¶ 42, just as Zillow.com provides a marketplace displaying real 21 estate for sale. JuicyAds serves over 172,000 websites and over 92,000 clients. Id. at 22 ¶ 44. Any business or individual may sign up at JuicyAds.com by completing the reg-23 istration form and accepting the TOS online. See id. at ¶ 48. 24 2 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 10 of 32 Page ID #:745 1 In the JuicyAds ad network, the publisher’s role is limited to signing up with Juicy-2 Ads, adding websites, adding ad zones, and placing ad code (which calls the ad) pro-3 vided by JuicyAds on its site. See id. at ¶ 48. Publishers can add, move, modify, or 4 completely remove ad spots from their site at any time, without notice to Tiger. The 5 JuicyAds ad delivery code is fully independent of the publisher’s site, and even if the 6 code is suspended, the publisher’s site continues to operate unaffected by the sus-7 pension. 1 Functionality and the site’s content (and its distribution) is not affected by 8 the addition or removal of ad space or ad code. 9 Tiger does not possess any particular knowledge concerning the content of a pub-10 lisher’s site. Tiger does not and cannot control the contents of publishers’ sites; pub-11 lishers maintain full responsibility for a site’s content and operation. TOS ¶ XIII, 12 attached as exhibit A. Tiger requires publishers to represent that their sites do not 13 contain any infringing or illegal content. See id. at ¶ X(a). 14 According to the FAC, "ALS owns a substantial library of self-produced adult 15 entertainment images and videos." FAC ¶ 20. ALS provides consumers with access 16 to this content on its websites and on DVDs. See id. "ALS displays its trademark and 17 copyright information on its works." Id. ALS holds copyright registrations for its 18 works and has registered the "ALS Scan" trademarks. See id. at ¶¶ 21–22. 19 Other than alleging that ALS holds rights in its photos and that they appeared on 20 several publisher sites (but not on the JuicyAds.com site), the FAC contains no fac-21 tual allegations that Tiger did anything to infringe ALS’s rights. Instead, ALS alleges 22 in a conclusory fashion that Tiger "materially contributed to or aided in" "direct 23 1 24 Only the publisher can remove the ad code from the publisher’s site. 3 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 11 of 32 Page ID #:746 1 infringement of ALS’s copyrighted works" and "with the right and ability to control 2 or supervise the direct infringement averred herein, failed to exercise such right and 3 ability and have directly benefited financially from such infringing activity." Id. at 4 ¶¶ 92, 96. 2 The FAC lacks sufficient detail about Tiger’s alleged "material contri-5 bution" to infringement and "right and ability to control or supervise" infringement. 6 The FAC acknowledges that these "publishers" are under contract with Tiger, 7 see id. at ¶ 46, but does not attach the TOS, which is publicly available on Juicy-8 Ads.com (https://www.juicyads.com/terms/) and attached as exhibit A.3 Under the 9 TOS, Tiger permits "publishers" to place ads on their sites and for "advertisers" 10 to buy the space. FAC ¶ 43 (quoting TOS ¶ I). Tiger prohibits publishers (and ad-11 vertisers) from violating its or any third party’s intellectual-property rights. See TOS 12 ¶¶ IV(a)(vii), X(a); see also FAC ¶ 46. Each "User takes full responsibility for the 13 selection and use of the JuicyAds’ service." TOS ¶ III. And "[a]ll Users agree to use 14 JuicyAds’ services for purposes that are lawful within their jurisdiction, and agree 15 not to use JuicyAds to distribute obscene or other unlawful content." Id. 16 JuicyAds users remain "solely responsible for the development, operation and 17 maintenance of their website and all materials that appear on Users’ websites used 18 in connection with the JuicyAds service." Id. at ¶ XIII. "JuicyAds expressly dis-19 claims any ownership or control of Users’ sites or content." Id. Each "User 20 2 The FAC contains various allegations about Tiger’s failure to enforce a repeat in-21 fringer policy, see, e.g., FAC ¶ 53, which have no bearing on whether a claim has been stated, and only pertain to Tiger’s eligibility for DMCA safe harbor. See 17 U.S.C. 22 § 512(i)(1). 3 Because the FAC refers to the TOS, the Court may rely on the TOS when deciding 23 this motion under Rule 12(b)(6) without converting it into one for summary judg-24 ment. See Dunn v. Castro, 621 F.3d 1196, 1205 n.6 (9th Cir. 2010). 4 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 12 of 32 Page ID #:747 1 acknowledges full responsibility for their websites and their activities in conjunc-2 tion." Id. And each "User shall be responsible for ensuring materials made available 3 through their websites do not violate or infringe upon … the rights of any third 4 party." Id. "JuicyAds reserves the right … to terminate its services to any Website 5 at any time, at its sole and exclusive discretion." Id. at ¶ IV. 6 In short, the TOS makes publishers "solely responsible" for their sites, including 7 the content of publishers’ sites and observing third parties’ intellectual-property 8 rights. See id. at ¶ XIII. Tiger’s only recourse for misbehavior by a publisher is ter-9 mination of the publisher’s account. See id. at ¶ IV. 10 Standard of Review 11 The Court should dismiss ALS’s FAC because it has not alleged facts that would 12 entitle it to relief as a matter of law. Rule 12 provides for dismissal of a complaint for 13 "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). 14 "Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue 15 of law." Neitzke v. Williams, 490 U.S. 319, 326 (1989). In considering the motion, 16 "the court is limited to the allegations on the face of the Complaint (including doc-17 uments attached thereto), matters which are properly judicially noticeable and'doc-18 uments whose contents are alleged in a complaint and whose authenticity no party 19 questions, but which are not physically attached to the pleading.’" Ko v. Eva Airways 20 Corp., 42 F. Supp. 3d 1296, 1299 (C.D. Cal. 2012). But "‘a court may not look be-21 yond the complaint to a plaintiff’s moving papers, such as a memorandum in oppo-22 sition to a defendant’s motion to dismiss.’" McRO, Inc. v. Namco Bandai Games Am., 23 Inc., 23 F. Supp. 3d 1113, 1125 (C.D. Cal. 2013). 24 5 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 13 of 32 Page ID #:748 1 Rule 12 exists to weed out implausible complaints before parties engage in expen-2 sive discovery. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007). To survive a 3 12(b)(6) motion, "a complaint must contain sufficient factual matter, accepted as 4 true, to'state a claim to relief that is plausible on its face.’" Ashcroft v. Iqbal, 556 U.S. 5 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility 6 when the plaintiff pleads factual content that allows the court to draw the reasonable 7 inference that the defendant is liable for the misconduct alleged." Id. at 678. "Fac-8 tual allegations must be enough to raise a right to relief above the speculative level." 9 Twombly, 550 U.S. at 555. "Threadbare recitals of the elements of a cause of action, 10 supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. 11 "Nor does a complaint suffice if it tenders'naked assertion[s]’ devoid of'further 12 factual enhancement.’" Id. (citation omitted). "Where a complaint pleads facts that 13 are'merely consistent with’ a defendant’s liability, it'stops short of the line between 14 possibility and plausibility of "entitlement to relief."’" Id. (citation omitted). 15 Argument 16 I. ALS fails to state a claim for contributory or vicarious copyright 17 infringement that is plausible on its face 18 ALS nowhere attempts to allege that Tiger has directly engaged in any copyright 19 infringement. It instead tries to pursue two forms of secondary liability for copyright 20 infringement recognized in caselaw but not codified in the Copyright Act—contrib-21 utory liability and vicarious liability infringement. But the FAC fails to allege any 22 facts suggesting that Tiger could be liable for the acts of independent third parties. 23 Any attempt to support this theory would fail as a matter of law. 24 6 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 14 of 32 Page ID #:749 1 At the outset, Tiger is not asserting a defense under the Digital Millennium Cop-2 yright Act (DMCA) safe harbor provisions. And "[t]he failure of a service provider’s 3 conduct to qualify for limitation of liability under this section shall not bear adversely 4 upon the consideration of a defense by the service provider that the service pro-5 vider’s conduct is not infringing under this title or any other defense." 17 U.S.C. 6 § 512(l). Indeed, DMCA compliance is optional: 7 Compliance with the DMCA is optional. If a service provider chooses 8 not to comply or fails to meet the statute’s technical requirements, its 9 liability will be determined under existing provisions of copyright law, 10 including the standards for third-party liability[.] … The fact that a 11 company chooses not to or fails to meet the requirements for any of the 12 specific limitations created by the Act may not itself be cited as evidence 13 of infringement. 14 1 Ian C. Ballon, E-Commerce and Internet Law § 4.12[1] (2015 update); accord 4 Mel-15 ville B. Nimmer & David Nimmer, Nimmer on Copyright § 12B.06[B][1] (2015). 16 Thus, the Court "must consider [Tiger’s] potential liability under the Copyright Act 17 without reference to title II of the DMCA." 4 Perfect 10, Inc. v. Amazon.com, Inc., 508 18 F.3d 1146, 1159 n.4 (9th Cir. 2007). 19 A. ALS fails to state a claim for contributory infringement because it cannot 20 allege that Tiger has materially contributed to any copyright infringement 21 To state a claim for contributory infringement, ALS must allege that Tiger "(1) 22 23 4 While ALS alleges that the "law requires parties to terminate business with repeat 24 infringers," FAC ¶ 83, no such law exists. 7 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 15 of 32 Page ID #:750 1 has knowledge of a third party’s infringing activity, and (2)'induces, causes, or ma-2 terially contributes to the infringing conduct.’" Perfect 10, Inc. v. Visa Int’l Serv. 3 Ass’n, 494 F.3d 788, 795 (9th Cir. 2007) (quoting Ellison v. Robertson, 357 F.3d 1072, 4 1076 (9th Cir. 2004)). ALS cannot satisfy the second prong as a matter of law. 5 ALS’s assertion that Tiger provides support and services for publishers that op-6 erate allegedly infringing websites falls far short of alleging factual content that allows 7 the Court to draw the reasonable inference that Tiger materially contributes to these 8 publishers’ infringing activity. As one court explained: 9 Participation sufficient to establish a claim of contributory infringement 10 may not consist of merely providing the "means to accomplish an 11 infringing activity …" In order for liability to be imposed, the alleged 12 contributory infringer must make more than a "mere quantitative 13 contribution" to the primary infringement. Participation in the 14 infringement must be "substantial." The authorization or assistance 15 must bear a direct relationship to the infringing acts, and the 16 contributory infringer must have acted in concert with the direct 17 infringer. 18 Livnat v. Lavi, No. 96-4967, 1998 WL 43221, at *3 (S.D.N.Y. Feb. 2, 1998) (empha-19 sis added) (internal citations omitted); accord Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 20 No. 04-0371, 2004 WL 1773349, at *3 (C.D. Cal. Aug. 5, 2004). 21 The "material contribution" requirement is rooted in the notion that "one who 22 directly contributes to another’s infringement should be held accountable." 23 24 8 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 16 of 32 Page ID #:751 1 Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996). Material con-2 tribution may be found only when the defendant "engages in personal conduct that 3 encourages or assists the infringement." A&M Records, Inc. v. Napster, Inc., 239 F.3d 4 1004, 1019 (9th Cir. 2001) (emphasis added). 5 "Material contribution" is more than passive participation. See Fonovisa, 76 F.3d 6 at 264. Material contribution has been found only where the defendant was actively 7 involved in supporting and enabling the infringing activity. It has also been found in 8 limited circumstances where the defendant has provided hosting services that are 9 engaged in distribution of the infringing material. See Religious Tech. Ctr. v. Netcom 10 On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1375 (N.D. Cal. 1995); see also Louis 11 Vuitton Malletier, S.A. v. Akanoc Sols., Inc., 658 F.3d 936, 943 (9th Cir. 2011) (finding 12 that providing direct infringers with server space satisfies the material contribution 13 standard). As the court in Netcom explained, 14 Where a defendant has knowledge of the primary infringer’s infringing activities, it will be liable if it "induces, causes or materially contributes 15 to the infringing conduct of" the primary infringer. Such participation must be substantial. 16 17 907 F. Supp. at 1375. Thus, "Material contribution turns on whether the activity in 18 question'substantially assists’ direct infringement." Louis Vuitton, 658 F.3d at 943. 19 Here, the FAC alleges in a conclusory fashion that "Tiger materially contributed 20 to the infringing conduct of its Publishers." FAC ¶ 62. The FAC lists (and mischar-21 acterizes) various features of the JuicyAds ad network that have nothing to do with 22 a publisher’s alleged infringing activity, let alone substantially assist direct infringe-23 ment. For example, ALS alleges that "Tiger built and maintained a'network,’ a 24 9 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 17 of 32 Page ID #:752 1'marketplace,’ a'community’ and a'platform’ of Users, Publishers who sell traffic 2 and Advertisers who buy traffic from Publishers." Id. But Tiger’s building and main-3 taining an ad network does not substantially assist a publisher’s direct infringement. 4 Nor does "require[ing] potential users to apply for membership in [the JuicyAds ad] 5 network," "provid[ing] customer service and detailed technical support for [Juicy-6 Ads] Users," "provid[ing] code that permits Publishers to put JuicyAds ads on their 7 sites," "serv[ing] the ads on Publisher sites," "redirect[ing] traffic to purchasing 8 Advertisers when a consumer clicks on the JuicyAds ad," or "charg[ing] Advertisers 9 and pay[ing] Publishers for this traffic" substantially assist a publisher’s direct cop-10 yright infringement. Id. Moreover, while ALS’s allegation that "Tiger advertises, 11 and provides valuable search tools and data regarding, each of its Publishers" is in-12 accurate, 5 id., this does not substantially assist direct copyright infringement either. 13 ALS alleges that Tiger provides support (by facilitating the sale of ad space) for 14 the businesses it challenges, but it does not allege (and cannot allege) that Tiger sub-15 stantially participates in the infringing activity. This distinction is critical. Copyright 16 law does not demand a blockade of companies that are alleged to engage in infringing 17 activity by imposing contributory infringement liability on vendors that do business 18 with those companies. Copyright law merely forbids the substantial participation by 19 others in infringing activity. See, e.g., Metro-Goldwyn-Mayer Studios Inc. v. Grokster, 20 Ltd., 545 U.S. 913, 937–40 (2005) (holding distributors of peer-to-peer, de-central-21 ized file-sharing software contributed to their users’ infringement of copyrighted 22 5 Despite ALS’s conclusory allegation that it used the JuicyAds "search tools to lo-23 cate eight additional Publishers in the JuicyAds network," FAC ¶ 54, JuicyAds 24 "search tools" cannot be used to search for or locate content on publisher sites. 10 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 18 of 32 Page ID #:753 1 works because they knew of infringing conduct, directly marketed their products for 2 that use, and made no effort to filter or remove copyrighted material from the ser-3 vice); Napster, 239 F.3d at 1022 (holding operator of centralized file-sharing service, 4 which affirmatively assisted users in swapping copyrighted music files, liable for con-5 tributory infringement based on its knowledge that users were sharing copyrighted 6 files, and its failure to block access to those files); Fonovisa, 76 F.3d at 264 (holding 7 operators of swap meet where vendors circulated pirated tapes of copyrighted music 8 contributorily infringed by "providing the site and facilities for known infringing ac-9 tivity"). 10 The defendants in Napster, Grokster, and Fonovisa shared a common attribute 11 missing here—the infringing materials at issue were stored, maintained, and availa-12 ble on systems or facilities actually operated by the defendants. Grokster and Napster 13 made and distributed software that was known and intended to be used to store and 14 share infringing music files. Fonovisa involved an analogous but lower-tech opera-15 tion—a swap meet where the sale of pirated music proliferated. See Visa, 494 F.3d 16 at 800 ("The swap meet operator in Fonovisa and the administrators of the Napster 17 and Grokster programs increased the level of infringement by providing a centralized 18 place, whether physical or virtual, where infringing works could be collected, sorted, 19 found, and bought, sold, or exchanged."). JuicyAds is not a swap meet, and infring-20 ing materials are not stored, maintained, or available on Tiger’s systems or facilities. 21 Copyright owners like ALS have increasingly sought to expand the scope of con-22 tributory liability in the online context, hoping to ensnare third parties like Tiger who 23 have had only incidental relationships with the actual infringers but who may have 24 11 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 19 of 32 Page ID #:754 1 deeper pockets. Courts have rejected these efforts. In Visa, for example, the owner 2 of the copyrights in images of nude models sought to impose contributory liability on 3 Visa and others for processing credit card payments to the proprietors of numerous 4 websites that had "stolen [Perfect 10’s] … images, altered them, and illegally offered 5 them for sale online." Id. at 793. Although the defendants’ payment systems 6 "ma[d]e it easier for … infringement to be profitable, and … therefore had the effect 7 of increasing such infringement," id. at 799, the Ninth Circuit nonetheless affirmed 8 the Rule 12(b)(6) dismissal of the claims against the payment processors. In doing 9 so, it distinguished Grokster, Napster, and Fonovisa: 10 The actual display, location, and distribution of infringing images in this 11 case occurs on websites that organize, display, and transmit information 12 over the wires and wireless instruments that make up the Internet. The 13 websites are the "site" of the infringement, not Defendants’ payment 14 networks. Defendants do not create, operate, advertise, or otherwise 15 promote these websites. They do not operate the servers on which they 16 reside. … Defendants merely provide a method of payment, not a 17 "site" or "facility" of infringement. 18 Id. at 799–800 (emphasis in original). 19 ALS advances the very same theory rejected by the Ninth Circuit in Visa. Tiger 20 does not create, operate, advertise, or otherwise promote the alleged infringing sites. 21 Tiger does not provide a "site or facility" of infringement; it simply serves ads on 22 publishers’ sites, and its serving of those ads does nothing to assist consumers in 23 24 12 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 20 of 32 Page ID #:755 1 finding the infringing sites or the allegedly infringing works. See Elsevier Ltd. v. Chi-2 tika, Inc., 826 F. Supp. 2d 398, 405 (D. Mass. 2011) ("while Chitika’s advertising 3 payments might make it easier for Saggi’s infringement to be profitable, Chitika did 4 not create, operate, advertise, or promote the infringing website, and its advertise-5 ments were not the'site’ of the infringement"). Even without ad content on the 6 sites, the infringing activity could continue, and thus the ad content is not a material 7 contribution. See Visa, 494 F.3d at 798 ("because infringement of Perfect 10’s cop-8 yrights can occur without using Defendants’ payment system, we hold that payment 9 processing by the Defendants … does not constitute a'material contribution’ …"). 10 Thus, like the credit card companies in Visa, Tiger "cannot be said to materially 11 contribute to the infringement in this case because [it] ha[s] no direct connection to 12 that infringement." Id. at 796. As in Visa, ALS’s does not (and cannot) "allege[] 13 that any infringing material passes over [Tiger’s] network or through [its] systems, 14 or that [Tiger’s] systems are used to alter or display the infringing images."6 See id. 15 And as in Visa, Tiger’s system "do[es] not help locate and [is] not used to distribute 16 the infringing images." 7 See id. Because ALS cannot allege substantial participation 17 by Tiger in any infringing activity of third parties, the contributory infringement 18 6 Though ALS alleges the contrary in paragraph 63 of the FAC, the majority of these 19 "allegations" are false or mischaracterizations of JuicyAds. Publishers do not "pub-lish infringing content in a network created and maintained by Tiger." JuicyAds has 20 nothing to do with publishing content. Nor did Tiger ever admit that it can "remove 21 or block access to material." Nor does Tiger "maintain search functions … that can assist or enable Internet users to locate infringing material." And Tiger has not "cre-22 ated a virtual centralized place where infringing works could be collected, sorted and found." ALS took many of these "allegations" from the cases it relies on. 23 7 Maintaining a searchable directory of publisher sites does not help locate infringing 24 images; it merely helps advertisers locate publisher sites to buy ads on. 13 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 21 of 32 Page ID #:756 1 claim must be dismissed. See id. (affirming 12(b)(6) dismissal of a claim for contrib-2 utory infringement where plaintiff failed to allege that "any infringing material 3 passes over Defendants’ payment network or through their payment processing sys-4 tems"); see also UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 5 1032 (9th Cir. 2013) (finding no contributory infringement against investors in file-6 sharing company where complaint alleged they helped fund infringement); Miller v. 7 Facebook, Inc., No. 10-00264, 2010 WL 1292708, at *4 (N.D. Cal. Mar. 31, 2010) 8 (finding complaint’s allegation that Facebook "induced and encourage infringe-9 ment" was a "legal conclusion disguised as a factual allegation"); Newborn v. Yahoo!, 10 Inc., 391 F. Supp. 2d 181, 189 (D.D.C. 2005) (dismissing contributory infringement 11 claim against online business due to plaintiff’s failure to allege a sufficient relation-12 ship between the services provided by the defendant and the infringing activity); Liv-13 nat, 1998 WL 43221, at *3 (dismissing as a matter of law contributory infringement 14 action against advertisers who merely placed ads in a magazine that published in-15 fringing photos). 16 B. ALS fails to state a claim for inducement liability as a matter of law 17 To establish inducement liability, ALS must allege (1) the distribution of a device 18 or product, (2) acts of infringement, (3) an object of promoting its use to infringe 19 copyright, and (4) causation." Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 20 1032 (9th Cir. 2013). "The third, usually dispositive, requirement for inducement 21 liability is that the'device’ or service be distributed'with the object of promoting its 22 use to infringe copyright, as shown by clear expression or other affirmative steps 23 taken to foster infringement.’" Id. at 1034 (quoting Grokster, 545 U.S. at 936–37). 24 14 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 22 of 32 Page ID #:757 1 In the FAC, ALS alleges in a conclusory fashion that "[a]ll named Defendants 2 (other than Dolphin), and Does 6–10, have induced infringement of ALS’s copy-3 rights." FAC ¶ 93. Nowhere in the FAC does ALS allege that Tiger distributes the 4 JuicyAds service "with the object of promoting its use to infringe copyright, as 5 shown by clear expression or other affirmative steps taken to foster infringement." 6 Grokster, 545 U.S. at 936–37. Nor does ALS allege that Tiger "provides a service 7 that could be used to infringe copyrights, with the manifested intent that the service 8 actually be used in that matter," Fung, 710 F.3d at 1037, let alone that Tiger "acted 9 with a purpose to cause copyright violations by use" of its service. Grokster, 545 U.S. 10 at 938. Nor does ALS allege that the JuicyAds service "was used to infringe [ALS’s] 11 copyrights." Fung, 710 F.3d at 1037. Because ALS has alleged no "affirmative steps 12 taken to foster infringement" and alleged no facts suggesting that Tiger promoted 13 its ad network as a means to infringe, it fails to state a claim on which relief can be 14 granted for inducement liability as a matter of law. 15 C. ALS cannot adequately plead a basis for Tiger’s vicarious liability for 16 copyright infringement 17 Nor does the FAC adequately state a claim for vicarious copyright infringement. 18 Vicarious infringement "is a concept related to, but distinct from, contributory in-19 fringement." Visa, 494 F.3d at 802. "To state a claim for vicarious copyright in-20 fringement, a plaintiff must allege that the defendant has (1) the right and ability to 21 supervise the infringing conduct and (2) a direct financial interest in the infringing 22 activity." Id. Thus, to state a claim for vicarious copyright infringement, ALS must 23 allege both control and benefit. ALS does not and cannot adequately allege either. 24 15 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 23 of 32 Page ID #:758 1 1. ALS fails to adequately allege that Tiger has the requisite right and 2 ability to supervise and control infringing activity by publishers 3 Tiger does not have the requisite right and ability to supervise and control the 4 infringing conduct. "[A] defendant exercises control over a direct infringer when he 5 has both a legal right to stop or limit the directly infringing conduct, as well as the 6 practical ability to do so." Amazon.com, 508 F.3d at 1173; see also Routt v. Ama-7 zon.com, Inc., 584 F. App’x 713, 715 (9th Cir. 2014) ("A defendant has control over 8 a third party’s infringing conduct when the defendant can directly put an end to that 9 conduct."). Thus, "For vicarious liability to attach," Tiger "must have the right 10 and ability to supervise and control the infringement, not just affect it." Visa, 494 F.3d 11 at 805. The FAC does not adequately allege that Tiger has the right and ability to 12 supervise and control publishers’ infringing activities. 13 ALS puts forth conclusory allegations that Tiger "ha[s], with the right and ability 14 to control or supervise the direct infringement averred herein, failed to exercise such 15 right and ability and ha[s] directly benefited financially from such infringing activ-16 ity." FAC ¶ 96. But the Court should not accept these conclusions because "the 17 Federal Rules do not require courts to credit a complaint’s conclusory statements 18 without reference to its factual context," Iqbal, 556 U.S. at 686, which is lacking here. 19 As the Supreme Court explained in Iqbal, Rule 8 "demands more than an unadorned, 20 the-defendant-unlawfully-harmed-me accusation." Id. at 678. 21 Here, the FAC does not allege sufficient facts showing that Tiger had the legal 22 right or practical ability to stop or limit publishers’ direct infringement, nor could it. 23 The TOS bars publishers from violating third parties’ intellectual property rights. 24 16 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 24 of 32 Page ID #:759 1 See FAC ¶ 46. By the TOS’s express terms, publishers are "solely responsible" for 2 the content of their sites. See TOS ¶ XIII ("User is solely responsible for the devel-3 opment, operation and maintenance of their website and all materials that appear on 4 Users’ websites used in connection with the JuicyAds service."). If Tiger discovers 5 a publisher is infringing a third party’s rights, it can only suspend or terminate the 6 publisher’s account. 8 See id. at ¶ IV; see also FAC ¶ 46 ("JuicyAds reserves sole dis-7 cretion and ability to suspend or terminate any Users’ account at any time."). 8 ALS appears to have modeled its case on the claims asserted by Perfect 10 against 9 Google, whose AdSense agreements gave it "the right to monitor and terminate part-10 nerships with entities that violate others’ copyrights." Amazon.com, 508 F.3d at 1173. 11 But the Ninth Circuit rejected Perfect 10’s argument. See id. Because "Google’s 12 right to terminate an AdSense partnership [did] not give Google the right to stop 13 direct infringement by third-party websites," and Google could not "terminate those 14 third-party websites or block their ability to host and serve infringing [content] on 15 the Internet," Google lacked any ability to supervise and control the infringement, 16 and thus could not be liable for vicarious infringement. 9 Id. at 1173–74. 17 8 18 Tiger’s referenced DMCA page does not support ALS (Tiger has since posted a new DMCA page). It merely says it is Tiger’s "policy" to "remove or block access 19 to material …." See FAC ¶ 47 (quoting DMCA page). It does not say Tiger can ac-tually remove or block access to publisher sites (which Tiger can’t). 20 9 The Ninth Circuit further distinguished Google from the activities of the vicarious 21 infringers in the Napster and Fonovisa cases on the ground that, unlike the swap meet operated in Fonovisa, or the host of the file-sharing service in Napster, "Google lacks 22 the practical ability to police the infringing activities of third-party websites." Ama-zon.com, 508 F.3d at 1174. Similarly, ALS does not (and cannot genuinely) allege that 23 Tiger has the practical ability to police publishers, or that its technology has the abil-24 ity to identify the precise nature of the content that appears on a publisher’s site. 17 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 25 of 32 Page ID #:760 1 The Ninth Circuit reached a similar conclusion in Visa in rejecting vicarious lia-2 bility as a matter of law. In Visa, Perfect 10 alleged that the defendant credit card 3 companies had the right and ability to control the allegedly infringing acts of websites 4 by not processing payments on those websites. 494 F.3d at 802. But the court found 5 those allegations insufficient to state a claim. The "mere ability to withdraw a finan-6 cial'carrot,’" it found, "does not create the'stick’ of'right and ability to control’ 7 that vicarious infringement requires." Id. at 803. Thus, Visa’s ability to stop pro-8 cessing payments and thereby reduce profitability of infringement did not amount to 9 an ability to control the infringement because the infringement "does not turn on the 10 payment; it turns on the reproduction … and distribution of the images, which 11 [credit card processors] do not do …." Id. at 806; see also Routt, 584 F. App’x at 715 12 (affirming dismissal of vicarious liability claim; complaint failed to "adequately al-13 lege that Amazon exercises any direct control over … Associates’ activities"); Mil-14 ler, 2010 WL 1292708, at *5 (dismissing vicarious liability claim where complaint 15 failed to allege Facebook had right or ability to supervise infringing conduct). 16 ALS’s claims are indistinguishable from the claims asserted and rejected in Am-17 azon.com and Visa. Both decisions dismissed claims for vicarious liability as a matter 18 of law. As in Visa, Tiger "cannot take away the tools the offending websites use to 19 produce, alter, and distribute the infringing images over the Internet." 494 F.3d at 20 804. As in Amazon.com, while Tiger can terminate a publisher’s account, exercising 21 that right would not stop any direct infringement or terminate the site’s ability to 22 host and serve infringing content, and thus Tiger is powerless to stop a publisher 23 from continuing its infringing activity. See 508 F.3d at 1173–74. The publisher may 24 18 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 26 of 32 Page ID #:761 1 still copy ALS’s photos and post them on its site, without Tiger’s aid, approval, or 2 even knowledge. See id. at 1174. Thus, Tiger’s ability to stop serving ads is not tan-3 tamount to the ability to control infringement because (1) Tiger’s "ability to exert 4 financial pressure does not give [it] the right or ability to control the actual infringing 5 activity at issue," Visa, 494 F.3d at 804, and (2) the infringement does not turn on 6 the ads but on the reproduction and distribution of the infringing works, see id. at 7 806. Accord Routt, 584 F. App’x at 715 ("Routt has alleged nothing to suggest that 8 an infringing Associate could not'continue to reproduce, display, and distribute its 9 infringing copies of [Routt’s] images after its participation in the [Amazon Associ-10 ates] program has ended.’ Thus, while Amazon may have had the right and ability to 11 terminate the accounts of the infringing Associates, Routt has not adequately alleged 12 that Amazon exercises any direct control over those Associates’ activities."). 13 Because ALS fails to adequately allege facts showing that Tiger has the right or 14 ability to supervise and control the alleged infringement, the FAC fails to state a 15 claim for vicarious liability against Tiger as a matter of law. See Amazon.com, 508 F.3d 16 at 1173–74; Visa, 494 F.3d at 804; see also Routt, 584 F. App’x at 715–16. 17 2. As a matter of law, Tiger does not have a direct financial interest in the 18 alleged infringement 19 ALS similarly fails to sufficiently allege facts establishing the requisite direct 20 causal relationship between the alleged infringing activities and Tiger’s commission 21 for serving ads on the alleged infringing sites. ALS alleges that Tiger "ha[s] directly 22 benefited financially from such infringing activity." FAC ¶ 96. According to ALS, 23 Tiger "profit[s] from the draw of infringement," id. at ¶ 6, and "make[s] money by 24 19 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 27 of 32 Page ID #:762 1 continuing to do commerce with sites that draw traffic through the lure of free in-2 fringing content." Id. at ¶ 83. ALS’s reliance on "ultimate" earnings by Tiger 3 demonstrates its inability to allege a "direct" financial benefit as required by law. 4 To sufficiently allege a direct financial interest, ALS must allege some relation-5 ship between the infringing activity (here, making and distributing unauthorized cop-6 ies of photos), and the revenue Tiger receives from advertisers. See Ellison, 357 F.3d 7 at 1079 ("Financial benefit exists where the availability of infringing material acts as 8 a'draw’ for customers."). There must be a symbiotic relationship between the di-9 rect infringers and another third party for the second party to be liable. Adobe Sys. 10 Inc. v. Canus Prods., Inc., 173 F. Supp. 2d 1044, 1051 (C.D. Cal. 2001). For liability to 11 be imposed on the second party, its relationship with the direct infringer must be 12 "more than a mere financial benefit to the landlord because the very success of the 13 landlord’s venture depends on the counterfeiting activity." Id. In cases where an ad-14 equate financial benefit to support liability has been found, the defendant’s financial 15 benefit is derived from the fact that its services are used for the purpose of the in-16 fringing activity. In Fonovisa, the landlord provided the physical facilities for distri-17 bution of counterfeit goods. 76 F.3d at 261. In Napster, the defendant provided a cen-18 tral index of locations of infringing files that was the linchpin of the file-sharing sys-19 tem. 239 F.3d at 1011. 20 ALS does not (and cannot) allege that Tiger provided a site, method, or tool for 21 infringing activities. ALS’s allegations "do not demonstrate that a symbiotic rela-22 tionship existed between [Tiger] and the infringing [publishers] such that [Tiger’s] 23 success (or even existence) came to depend on the" publishers’ infringing activities. 24 20 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 28 of 32 Page ID #:763 1 Adobe, 173 F. Supp. 2d at 1053. Rather, publishers earn ad revenue when consum-2 ers—who locate publishers’ sites without any assistance from Tiger—click on ads 3 that lead them away from the publishers’ sites. Thus, Tiger’s serving ads on pub-4 lishers’ sites does not relate to infringement at all, because publishers could earn ad 5 revenue regardless of the content offered on their sites. Indeed, a court in this Dis-6 trict found that ad revenue cannot be used to demonstrate a causal relationship be-7 tween the infringing activity and a financial benefit to a defendant. See Perfect 10, Inc. 8 v. Google, Inc., No. 04-9484, 2010 WL 9479060, at *9 (C.D. Cal. July 30, 2010) (con-9 cluding that the plaintiff failed to provide evidence showing ads next to infringing 10 works, and stating that even if the plaintiff produced that evidence, "it is unclear that 11 such evidence would qualify as the direct financial benefit necessary to impose vicar-12 ious liability"). 10 13 In short, ALS has not alleged—and cannot allege—facts supporting any conclu-14 sion that Tiger has obtained a direct financial benefit from the infringing activity. See 15 Ellison, 357 F.3d at 1079 (finding no various infringement where "record lacks evi-16 dence that AOL attracted or retained subscriptions because of the infringement or 17 lost subscriptions because of AOL’s eventual obstruction of the infringement"). 18 19 10 Accord Parker v. Google, Inc., 422 F. Supp. 2d 492, 500 (E.D. Pa. 2006) (dismissing claim for vicarious infringement where plaintiff had not alleged any relationship be-20 tween infringing activity and Google’s advertising revenue), aff’d, 242 F. App’x 833 21 (3d Cir. 2007); Sarvis v. Polyvore, Inc., No. 12-12233, 2013 WL 4056208, at *9–10 (D. Mass. Aug. 9, 2013) (finding that plaintiff’s assertions made in opposition to motion 22 to dismiss—namely, that the defendant’s financial interest is demonstrated by "ad-vertising [sic] on the contest page, from fees it charges its advertising underwriter 23 (e.g. Samsung), and because its contest are User base draws"—do not constitute a 24 plausible claim that defendant benefited financially from the infringement). 21 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 29 of 32 Page ID #:764 1 II. ALS fails to state a claim for contributory trademark infringement 2 ALS’s contributory trademark claim fails for the same reasons that its copyright 3 claims fail. Liability for indirect infringers is even narrower under trademark law than 4 under copyright law. See Visa, 494 F.3d at 806 ("The tests for secondary trademark 5 infringement are even more difficult to satisfy than those required to find secondary 6 copyright infringement."). Because ALS has failed to allege facts sufficient to sup-7 port a claim for contributory copyright infringement, it necessarily has failed to allege 8 facts sufficient to support a claim for contributory trademark infringement. See id.; 9 see also Newborn, 391 F. Supp. 2d at 190–91 (finding conclusory allegations that de-10 fendant allowed a third party to use mark failed to state a claim). 11 To state a claim for contributory trademark infringement, ALS must allege that 12 Tiger (1) "intentionally induced" another to infringe or (2) continued to supply an 13 infringing product to an infringer with knowledge of infringement. Inwood Labs., Inc. 14 v. Ives Labs., Inc., 456 U.S. 844, 855 (1982). When the alleged direct infringer sup-15 plies a service rather than a product, there must be "[d]irect control and monitoring 16 of the instrumentality used by a third party to infringe the plaintiff’s mark." Visa, 17 494 F.3d at 807. ALS has not alleged facts sufficient to support either potential basis 18 for contributory trademark infringement liability. 19 A. ALS cannot allege that Tiger intentionally induced any publisher to 20 infringe ALS’s trademarks 21 The first basis for liability set out in Inwood, intentional inducement to infringe, is 22 inadequately alleged in the FAC. See FAC ¶¶ 85, 106 (making conclusory allegations 23 about inducement of trademark infringement). ALS simply has not alleged sufficient 24 22 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 30 of 32 Page ID #:765 1 facts that would lend support to a claim that Tiger has intentionally induced any pub-2 lisher to use—much less infringe—any ALS trademark. Thus, the first basis for con-3 tributory trademark infringement liability cannot apply in this case. 4 B. ALS cannot allege that Tiger had direct control and monitoring of the 5 instrumentality used by a third party to infringe 6 The second possible basis for potential contributory trademark infringement lia-7 bility recognized in Inwood requires ALS to allege that (1) Tiger "continued to supply 8 its services to one who it knew or had reason to know was engaging in trademark 9 infringement," Louis Vuitton, 658 F.3d at 942, and (2) that Tiger "had'[d]irect con-10 trol and monitoring of the instrumentality used by a third party to infringe’" ALS’s 11 marks. Id. (quoting Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 984 12 (9th Cir. 1999)). ALS fails to adequately allege "direct control and monitoring." 13 Here, Tiger has no control over publishers’ infringing actions. No Tiger service 14 is allegedly used in or as part of any infringing act, as required by Inwood and Lockheed 15 Martin. The FAC does not (nor can it) allege that Tiger can control the content of 16 any publisher site, or that Tiger provides a service that is necessary for the infringe-17 ment to take place. And unlike Louis Vuitton, where the web hosting businesses "had 18 direct control over the'master switch’ that kept the websites online and available," 19 958 F.3d at 943, Tiger does not have "direct control," let alone any control, "over 20 the'master switch’ that [keeps] the [publishers’] websites online and available." Id. 21 Because the FAC does not allege that Tiger has "induced" the infringement of 22 ALS’s trademarks, or that Tiger has any control over the "instrumentality" used by 23 publishers to allegedly infringe ALS’s trademarks, the Court must dismiss this claim. 24 23 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 31 of 32 Page ID #:766 1 III. ALS fails to state a claim for unfair competition as a matter of law 2 Finally, ALS alleges that the "acts of trademark infringement, direct and second-3 ary, constitute unfair competition under Cal. Bus. & Prof. Code § 17200." FAC 4 ¶ 108. The Ninth Circuit "has consistently held that … actions pursuant to Califor-5 nia Business and Professions Code § 17200 are'substantially congruent’ to claims 6 made under the Lanham Act." Cleary v. News Corp., 30 F.3d 1255, 1262–63 (9th Cir. 7 1994). Because it fails to state a claim against Tiger for contributory trademark in-8 fringement under the Lanham Act, ALS’s § 17200 unfair competition claim neces-9 sarily fails as well. See Japan Telecom, Inc. v. Japan Telecom Am. Inc., 287 F.3d 866, 10 875 (9th Cir. 2002) ("Japan Telecom’s California unfair competition claim fails be-11 cause its related Lanham Act claims fail."). 12 Conclusion 13 ALS has alleged four claims against Tiger in this action, all of which can be boiled 14 down to a single premise: that it can somehow create a duty on the part of Tiger (or 15 virtually anyone else) to undertake the burden of policing ALS’s rights against third-16 party infringers by the simple expedient of demanding that Tiger do so. 11 No such 17 free-floating "duty by tag" exists under any of the legal doctrines asserted by ALS, 18 11 Tiger has not received any complaints regarding StolenALSPictures.com from 19 ALS or anyone else. And ALS does not dispute that its employee created that site and uploaded ALS’s content. See FAC ¶¶ 55–56. Yet ALS faults Tiger because it 20 failed to locate and remove this site because the site claims its content is stolen (even 21 though it is not stolen). See id. at ¶ 57. But as the Ninth Circuit explained, "When a website traffics in pictures that are titillating by nature, describing photographs as 22'illegal’ or'stolen’ may be an attempt to increase their salacious appeal, rather than an admission that the photographs are actually illegal or stolen. We do not place the 23 burden of determining whether photographs are actually illegal on a service pro-24 vider." Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1114 (9th Cir. 2007). 24 Case 2:16-cv-05051-GW-AFM Document 36 Filed 09/05/16 Page 32 of 32 Page ID #:767 1 or any other legal theory. This is not a mere failure to allege the right facts, and it is 2 not a failure that can be cured by more artful pleading. Rather, it is a fundamental 3 misunderstanding of the law, which—if accepted by this Court—would erase the line 4 between infringers and the rest of the world. ALS may well have a legitimate claim 5 against some website operators who have misappropriated its property. But that 6 claim is against those third parties, and ALS’s remedy is to sue them, not Tiger. ALS 7 cannot appoint Tiger as a more convenient proxy for those alleged infringers. 8 For these reasons, this Court should reject ALS’s misguided attempt to impose 9 secondary liability on Tiger. Tiger’s contractual relationship with independent third 10 parties that allegedly infringed ALS’s rights does not render Tiger liable for their 11 acts. The law requires much more. And simply because Tiger’s name appears on 12 third-party sites does not render it responsible for the contents of those sites. Were 13 that the rule, all advertisers would become guarantors of the content of pages where 14 their ads appear. Such a requirement would severely constrain online advertising, and 15 result in a dangerous expansion of infringement liability on traffic networks. Because 16 ALS’s theory fails as a matter of law, and because it has no basis from which to allege 17 a viable claim, the Court should dismiss the claims against Tiger with prejudice. 18 Respectfully submitted, 19 By:/s/Kevin S. Toll KEVIN S. TOLL (appearing pro hac vice) 20 SILVERSTEIN LEGAL 21 Attorneys for Defendant Tiger Media Inc. 22 Dated: September 5, 2016 23 24 25

NOTICE OF MOTION AND MOTION to Dismiss Case Pursuant to Rule 12(b)(6) filed by Defendant Cloudflare, Inc. Motion set for hearing on 10/24/2016 at 08:30 AM before Judge George H. Wu.

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP Rachel Herrick Kassabian (Bar No. 191060) 2 rachelkassabian@quinnemanuel.com Carolyn M. Homer (Bar No. 286441) 3 carolynhomer@quinnemanuel.com 555 Twin Dolphin Drive, 5th Floor 4 Redwood Shores, California 94065 Telephone: (650) 801-5000 5 Facsimile: (650) 801-5100 6 Attorneys for Defendant CloudFlare, Inc. 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 WESTERN DIVISION 10 ALS SCAN, INC., Case No. 2:16-cv-05051-GW-AFM 11 Plaintiff, CLOUDFLARE, INC.’S NOTICE OF 12 MOTION AND MOTION TO DISMISS vs. FIRST AMENDED COMPLAINT 13 PURSUANT TO RULE 12(B)(6) CLOUDFLARE, INC., et. al, 14 Hearing Date: October 24, 2016 Defendants. Hearing Time: 8:30 AM 15 Place: Courtroom 10 16 Judge: Hon. George H. Wu 17 18 19 20 21 22 23 24 25 26 27 28 CLOUDFLARE’S NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 NOTICE OF MOTION AND MOTION TO DISMISS 2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 3 PLEASE TAKE NOTICE that on October 24, 2016 at 8:30 A.M., or as soon 4 thereafter as counsel may be heard, before the Hon. George H. Wu in Courtroom 10 5 of the United States District Courthouse for the Central District of California, 6 Western Division, 312 North Spring Street, Los Angeles, California, Defendant 7 CloudFlare, Inc. will and hereby does move the Court to dismiss the First Amended 8 Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a 9 claim. 10 This motion is made following the conference of counsel pursuant to L.R. 7-3 11 which took place on September 19 and 20, 2016. 12 This motion is based on this notice of motion and supporting memorandum, 13 all matters incorporated by reference in the First Amended Complaint, all matters of 14 which the Court may take judicial notice, and such other written or oral argument as 15 may be presented to or requested by the Court. 16 17 Dated: September 26, 2016 Respectfully submitted, 18 QUINN EMANUEL URQUHART & 19 SULLIVAN LLP 20 21 By 22 Rachel Kassabian 23 Attorney for Defendant 24 CloudFlare, Inc. 25 26 27 28-1-CLOUDFLARE’S NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6)

MEMORANDUM in Support of NOTICE OF MOTION AND MOTION to Dismiss Case Pursuant to Rule 12(b)(6) {{49}} filed by Defendant Cloudflare, Inc.

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP Rachel Herrick Kassabian (Bar No. 191060) 2 rachelkassabian@quinnemanuel.com Carolyn M. Homer (Bar No. 286441) 3 carolynhomer@quinnemanuel.com 555 Twin Dolphin Drive, 5th Floor 4 Redwood Shores, California 94065 Telephone: (650) 801-5000 5 Facsimile: (650) 801-5100 6 Attorneys for Defendant CloudFlare, Inc. 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 WESTERN DIVISION 10 ALS SCAN, INC., Case No. 2:16-cv-05051-GW-AFM 11 Plaintiff, CLOUDFLARE, INC.’S MEMORANDUM 12 IN SUPPORT OF ITS MOTION TO vs. DISMISS FIRST AMENDED COMPLAINT 13 CLOUDFLARE, INC., et. al, PURSUANT TO RULE 12(B)(6) 14 Defendants. Hearing Date: October 24, 2016 15 Hearing Time: 8:30 AM Place: Courtroom 10 16 Judge: Hon. George H. Wu 17 18 19 20 21 22 23 24 25 26 27 28 CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 TABLE OF CONTENTS 2 Page 3 PRELIMINARY STATEMENT................................................................................. 1 4 FACTUAL BACKGROUND...................................................................................... 2 5 LEGAL STANDARD................................................................................................. 4 6 ARGUMENT............................................................................................................... 5 7 I. ALS’S SECONDARY COPYRIGHT INFRINGEMENT CLAIMS AGAINST CLOUDFLARE FAIL ON MULTIPLE GROUNDS.................... 5 8 A. ALS Fails To State A Claim For Contributory Copyright 9 Infringement Under Either Of Its Theories............................................. 5 10 1. ALS’s material contribution theory fails because as an intermediary provider of optimizing web services there are 11 no steps CloudFlare could take to stop the alleged infringements................................................................................ 6 12 2. ALS’s inducement theory fails because it lacks any factual 13 allegations that CloudFlare’s services somehow induced the alleged infringement............................................................... 8 14 B. ALS Fails To State A Claim For Vicarious Copyright 15 Infringement Because It Has Not Alleged Any Facts Supporting The Bare Elements, Nor Could It Do So................................................ 9 16 C. ALS Fails To State A Claim For Any Form Of Secondary 17 Copyright Infringement Against CloudFlare, For Failure To Properly Plead Any Underlying Direct Infringements......................... 11 18 II. ALS FAILS TO STATE A CLAIM FOR CONTRIBUTORY 19 TRADEMARK INFRINGEMENT................................................................. 13 20 A. ALS Cannot Manufacture A Separate Trademark Claim Out Of Its Copyright Claim Given The Indivisibility Of The Underlying 21 Conduct................................................................................................. 13 22 B. ALS Fails To Properly Plead The Elements Of Either An Inducement Theory Or A Direct Control Theory Of Contributory 23 Trademark Infringement....................................................................... 15 24 1. ALS does not allege that CloudFlare intentionally induced trademark infringement.............................................................. 16 25 2. ALS does not allege that CloudFlare controls the 26 instrumentalities of others’ trademark infringement.................. 16 27 C. ALS Also Fails To Properly Plead An Underlying Direct Trademark Infringement On Which To Base Its Contributory 28 Trademark Claim Against CloudFlare.................................................. 18 i CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 III. ALS SCAN’S UNFAIR COMPETITION CLAIM IS BARRED ON MULTIPLE GROUNDS................................................................................. 19 2 CONCLUSION.......................................................................................................... 22 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28-ii-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 TABLE OF AUTHORITIES 2 Page 3 Cases 4 Adobe Sys. Inc. v. Christenson, 809 F.3d 1071 (9th Cir. 2015)........................................................................ 18, 19 5 Ashcroft v. Iqbal, 6 556 U.S. 662 (2009)......................................................................... 5, 9, 10, 11, 18 7 Beachbody, LLC v. Universal Nutrients, LLC, No. 16-CV-02015, 2016 WL 3912014 (C.D. Cal. July 18, 2016)....................... 18 8 Bell Atl. Corp. v. Twombly, 9 550 U.S. 544 (2007)..................................................................................... 7, 8, 12 10 Cobbler Nevada, LLC v. Gonzales, No. 3:15-CV-00866, 2016 WL 3392368 (D. Or. June 8, 2016)............................ 6 11 Dastar Corp. v. Twentieth Century Fox Film Corp., 12 539 U.S. 23 (2003)................................................................................... 13, 14, 21 13 Designer Skin, LLC v. S & L Vitamins, Inc., 560 F. Supp. 2d 811 (D. Ariz. 2008).................................................................... 19 14 E. W. Sounds, Inc. v. Phoenix, 15 2012 WL 4003047 (C.D. Cal. Sept. 10, 2012)..................................................... 12 16 Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004).......................................................................... 9, 11 17 Gibson Guitar Corp. v. Viacom Int’l Inc., 18 No. 12-CV-10870, 2013 WL 2155309 (C.D. Cal. May 17, 2013), aff’d, 640 F. App’x 677 (9th Cir. 2016)............................................................... 17 19 Knievel v. ESPN, 20 393 F.3d 1068 (9th Cir. 2005)................................................................................ 5 21 Kodadek v. MTV Networks, Inc., 152 F.3d 1209 (9th Cir. 1998).............................................................................. 21 22 Ledesma v. Corral, 23 No. 2:15-CV-04266, 2016 WL 827743 (C.D. Cal. Mar. 2, 2016)....................... 12 24 Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001).................................................................................. 5 25 Leonard v. Stemtech Int’l Inc., 26 No. 15-3198, 2016 WL 4446560 (3d Cir. Aug. 24, 2016)..................................... 8 27 Lions Gate Entm’t Inc. v. TD Ameritrade Servs. Co., Inc., No. 15-CV-05024, 2016 WL 1027998 (C.D. Cal. Mar. 14, 2016)................ 15, 21 28-iii-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 Local TV, LLC v. Superior Court, No. B271883, 2016 WL 4578645 (Cal. Ct. App. Sept. 2, 2016)......................... 20 2 Lockheed Martin Corp. v. Network Solutions, Inc., 3 194 F.3d 980 (9th Cir. 1999).......................................................................... 16, 17 4 Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005)........................................................................................... 8, 9 5 Newborn v. Yahoo!, Inc., 6 391 F. Supp. 2d 181 (D.D.C. 2005)..................................................................... 16 7 Palmer Kane LLC v. Scholastic Corp., 2013 WL 709276 (S.D.N.Y. Feb. 27, 2013)........................................................ 11 8 Pellerin v. Honeywell Int’l, Inc., 9 877 F. Supp. 2d 983 (S.D. Cal. 2012).................................................................. 20 10 Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007).................................................................. 6, 7, 9, 11 11 Perfect 10 v. CCBill LLC, 12 340 F. Supp. 2d 1077 (C.D. Cal. 2004)................................................................ 20 13 Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007)........................................................................ 20, 21 14 Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 15 494 F.3d 788 (9th Cir. 2007)................................................................ 8, 15, 16, 17 16 Phoenix Entm't Partners v. Rumsey, No. 15-2844, 2016 WL 3924347 (7th Cir. July 21, 2016)................................... 14 17 In re Rigel Pharm., Inc. Sec. Litig., 18 697 F.3d 869 (9th Cir. 2012).................................................................................. 5 19 Routt v. Amazon.com, Inc., 584 F. App'x 713 (9th Cir. 2014)......................................................................... 10 20 Ryan v. Editions Ltd. W., Inc., 21 417 F. App'x 699 (9th Cir. 2011)......................................................................... 21 22 Slep-Tone Entm’t Corp. v. Canton Phoenix Inc., No. 3:14-CV-00764, 2014 WL 5817903 (D. Or. Nov. 7, 2014).......................... 15 23 Sony Corp. of Am. v. Universal City Studios, Inc., 24 464 U.S. 417 (1984)............................................................................................... 9 25 Stevo Design, Inc. v. SBR Mktg. Ltd., 919 F. Supp. 2d 1112 (D. Nev. 2013).................................................................. 19 26 Sybersound Records, Inc. v. UAV Corp., 27 517 F.3d 1137 (9th Cir. 2008).............................................................................. 21 28-iv-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 Statutes 2 17 U.S.C. § 106.......................................................................................................... 13 3 47 U.S.C. § 230(c)(1)............................................................................................ 2, 20 4 Cal. Bus. & Prof. Code § 17200...................................................................... 4, 20, 21 5 Digital Millennium Copyright Act, 17 U.S.C. § 512 et seq...................................... 13 6 Fed. R. Civ. P. 12(b)(6)............................................................................................... 4 7 Other Authorities 8 4 McCarthy on Trademarks and Unfair Competition § 25:17 (4th ed.).................... 18 9 S. Rep. No. 105-190 (1998)....................................................................................... 13 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28-v-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 PRELIMINARY STATEMENT 2 CloudFlare provides internet security and website optimization services with 3 the goal of "building a better internet." CloudFlare offers protection against 4 malicious attacks to the operators of over 4 million websites in virtually every 5 industry, with customers as varied as Cisco, the FBI, the Library of Congress, 6 NASDAQ, eHarmony, the rock band Metallica, and various state governments. 7 CloudFlare has been honored with many industry awards and accolades, including 8 the Wall Street Journal Technology Innovation Award in 2011 and 2012, and the 9 TechCrunch 2015 award for Best Enterprise Startup. A cyber-security innovator,1 10 CloudFlare’s services add value to its customers, who already have complete 11 existing websites including hosting facilities, Internet connectivity, and all the 12 technical applications needed to run the websites. See generally CloudFlare, 13 Overview, https://www.cloudflare.com/overview/. 14 In this case, adult publisher, pay site operator and content owner ALS Scan 15 ("ALS") tries to lump CloudFlare in as a co-defendant to a copyright dispute 16 between itself and certain allegedly infringing adult website operators. ALS insists 17 that CloudFlare’s optimization and cyber-security services are somehow "enticing 18 and inducing" the adult websites to infringe ALS’s copyrighted works, as well as its 19 registered trademarks embedded as watermarks in those works. ALS’s implausible 20 claims are fatally defective and subject to dismissal for several reasons. 21 First, ALS’s First Amended Complaint merely parrots the legal elements of 22 its claims but lacks any specific factual allegations to sustain them. This alone 23 warrants dismissal under the governing pleading standards. 24 25 1 26 See also Lily Hay Newman, CloudFlare Launches a Three-Pronged Attack to Encrypt the Entire Web, Wired (Sep. 20, 2016), 27 https://www.wired.com/2016/09/cloudflare-launches-three-pronged-attack-encrypt-28 web/. 1 CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 Second, ALS fails to plead how CloudFlare’s provision of generally 2 applicable services used by a vast array of customers specifically encourages or 3 induces infringing activity by the small handful of alleged infringers in this case. 4 Similarly, ALS fails to allege how CloudFlare purportedly has a material impact on 5 the infringing activity. Nor could ALS fairly plead such materiality, given the 6 nature of the technology involved. While CloudFlare’s services help the internet 7 work quickly, securely, and consistently for all users, turning off CloudFlare’s 8 service would only make transmission a bit slower and more susceptible to being 9 hacked; it would not stop or otherwise deter the allegedly infringing websites. 10 Third, the few facts ALS has pleaded make clear that its complaint is one for 11 copyright infringement, and courts agree that a party may not manufacture 12 trademark and unfair competition claims out of a copyright injury, as ALS attempts 13 to do here. Specifically, ALS’s trademark theory relies on the fact that the ALS 14 trademark is embedded in copyright protected works, and necessarily is duplicated 15 every time the works are copied. Courts have refused to recognize this indivisible 16 act as multiple separate claims. Likewise, ALS’s state law unfair competition claim 17 is based upon the exact same alleged conduct – the unauthorized reproduction of 18 images and videos – and thus is preempted by the Copyright Act. And even were 19 the unfair competition claim properly grounded in a cognizable underlying 20 trademark claim, it nevertheless is barred by Section 230 of the Communications 21 Decency Act, 47 U.S.C. § 230, which grants service providers immunity from state 22 law claims arising from user-generated internet content. This Court should reject 23 ALS’s attempts to multiply its claims, and dismiss its facially invalid First Amended 24 Complaint in full. 25 FACTUAL BACKGROUND 26 Plaintiff ALS is an adult entertainment company that claims to own "a 27 substantial library of self-produced adult entertainment images and videos." 28 FAC ¶ 20. In this lawsuit ALS has sued eight different companies, including-2-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 defendant CloudFlare, a web performance and security company. FAC ¶ 29. The 2 gravamen of ALS’s claims is that 19 specific adult websites have displayed 3 infringing copies of ALS’s copyrighted works, which works also bear watermarks of 4 the "ALS Scan" registered trademark. FAC ¶¶ 23, 81. ALS further claims that it 5 has been harmed by this infringement, because ALS’s "sales have declined... [and] 6 [t]here are no material factors to explain this decline other than the ubiquitous 7 presence of infringing ALS content on the Internet." FAC ¶ 25. 8 ALS does not contend that defendant CloudFlare owns or operates any of 9 these 19 alleged infringing sites. Instead, ALS alleges that "CloudFlare provides a 10 variety of Internet services" to 11 of the 19 alleged infringing sites, "including 11 provision of a'content delivery network’ that delivers services to hosts of pirate 12 sites." FAC ¶¶ 10, 81. A content delivery network, or "CDN," is a system of data 13 centers that "speed[s] a consumer’s access to the website[s]" by routing the 14 websites’ traffic "through a series of data centers maintained by Cloudflare." 15 FAC ¶ 32. These CDN services speed "load times" for websites and "decrease [] 16 spam and other attacks" on the origin server hosting the websites. FAC ¶ 30. ALS 17 cites extensively to CloudFlare’s public facing website (FAC ¶¶ 30-32), which also 18 makes clear that CloudFlare is an add-on service for existing websites: 19 CloudFlare can be used by anyone with a website and their own domain, 20 regardless of your choice in platform. From start to finish, setup takes 21 most website owners less than 5 minutes. Adding your website requires 22 only a simple change to your domain’s DNS settings. There is no 23 hardware or software to install or maintain and you do not need to 24 change any of your site’s existing code. If you are ever unhappy you can 25 turn CloudFlare off as easily as you turned it on. Join CloudFlare today 26 and be part of the community that is creating a better web. 27 See CloudFlare, Overview, https://www.cloudflare.com/overview/. Even when 28 viewed in the light most favorable to plaintiff, the crux of ALS’s factual claims is-3-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 that CloudFlare provides automated internet security and website optimization 2 services that have been used by 11 adult websites that allegedly display infringing 3 ALS content. ALS provides no factual allegations as to whether or how these 4 CloudFlare services encourage, entice, or even relate to the alleged infringing 5 activity. 6 ALS represents that it is "the sole owner of the copyrighted works that are the 7 subject of this action, all of which have been registered with the U.S. Copyright 8 Office." FAC ¶ 9. Elsewhere, ALS alleges that it "has submitted hundreds of 9 registrations for its copyrighted works to the U.S. Copyright Office," FAC ¶ 21, and 10 attaches a comprehensive list of those works as Exhibit 1 to the First Amended 11 Complaint. But nowhere does ALS specify which of those works are at issue in this 12 lawsuit. Nor does ALS specify which of its works were directly infringed by which 13 defendant, nor which of those alleged direct infringements form the basis for ALS’s 14 secondary copyright infringement claims against CloudFlare. 15 ALS further alleges that its copyrighted images and videos bear a watermark 16 denoting the "ALS Scan" registered trademark. FAC ¶ 23. When its copyrighted 17 content is reproduced without authorization, ALS claims, by necessity, so is the 18 embedded trademark. FAC ¶ 85. As with its secondary copyright infringement 19 claims, ALS does not identify which specific underlying direct infringements form 20 the basis for ALS’s secondary trademark infringement claims against CloudFlare. 21 In addition to its copyright and trademark claims, ALS pleads that the "acts of 22 trademark infringement... constitute unfair competition under Cal. Bus. & Prof. 23 Code § 17200." FAC ¶ 108. 24 LEGAL STANDARD 25 A complaint is subject to dismissal if it fails to state a claim upon which relief 26 can be granted. See Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a 27 complaint must contain sufficient factual matter, accepted as true, to'state a claim 28 to relief that is plausible on its face’ [such as where] the plaintiff pleads factual-4-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 content that allows the court to draw the reasonable inference that the defendant is 2 liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 3 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)). Under this 4 plausibility standard, "a formulaic recitation of the elements of a cause of action will 5 not do." Twombly, 550 U.S. at 555 (internal quotation marks and ellipsis omitted). 6 Rather, the facts pleaded must show "more than a sheer possibility that a defendant 7 has acted unlawfully. Where a complaint pleads facts that are merely consistent 8 with a defendant’s liability, it stops short of the line between possibility and 9 plausibility of entitlement to relief." Iqbal, 556 U.S. at 678 (internal quotation 10 marks and citation omitted). Where the complaint does not permit the court to infer 11 more than the mere possibility of misconduct, it should be dismissed. Id. at 679. 12 In making this determination, the court may consider not only the contents of 13 the complaint, but also any "materials incorporated into the complaint by reference, 14 and matters of judicial notice." In re Rigel Pharm., Inc. Sec. Litig., 697 F.3d 869, 15 875-76 (9th Cir. 2012); Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 16 2001). The materials incorporated by reference need not be physically attached to 17 the complaint, nor is the rule limited to "paper" documents – it applies equally to 18 digital or electronic "materials" such as websites. Knievel v. ESPN, 393 F.3d 1068, 19 1076 (9th Cir. 2005) (affirming dismissal of defamation claim under Rule 12(b)(6) 20 and taking judicial notice of web pages on ESPN website containing allegedly 21 defamatory content because "[t]he rationale of the'incorporation by reference’ 22 doctrine applies with equal force to internet pages as it does to printed material"). 23 ARGUMENT 24 I. ALS’S SECONDARY COPYRIGHT INFRINGEMENT CLAIMS AGAINST CLOUDFLARE FAIL ON MULTIPLE GROUNDS 25 A. ALS Fails To State A Claim For Contributory Copyright 26 Infringement Under Either Of Its Theories 27 Plaintiff’s claim of contributory copyright infringement fails under either of 28 its two theories – material contribution or inducement. FAC ¶¶ 92, 93.-5-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 1. ALS’s material contribution theory fails because as an intermediary provider of optimizing web services there are 2 no steps CloudFlare could take to stop the alleged infringements 3 4 In the seminal case of Perfect 10 v. Amazon, the Ninth Circuit held that an 5 online service provider could be held liable for contributory copyright infringement 6 under the "material contribution" theory only if "it had knowledge that infringing 7 [works] were available using its [system], could take simple measures to prevent 8 further damage to [the] copyrighted works, and failed to take such steps." 508 F.3d 9 1146, 1172 (9th Cir. 2007). 10 Here, given the nature of CloudFlare’s services, as described by Plaintiffs in 11 their own complaint, ALS cannot satisfy this standard. CloudFlare is not the 12 operator of the allegedly infringing sites but is merely one of the many 13 intermediaries across the internet that provide automated CDN services, which 14 result in the websites in question loading a bit faster than they would if they did not 15 utilize CDN services. FAC ¶¶ 29, 30, 32 (CloudFlare speeds access to the websites 16 in question and allows them to load faster). If CloudFlare’s services were 17 completely unavailable to the allegedly infringing websites, those websites would 18 still exist, and the infringements would continue unabated; the sites would merely 19 load a bit slower and be more susceptible to hacking. See FAC ¶¶ 29, 30, 32; see 20 also CloudFlare, Overview, https://www.cloudflare.com/overview/("CloudFlare can 21 be used by anyone with a website and their own domain, regardless of your choice 22 in platform... If you are ever unhappy you can turn CloudFlare off as easily as you 23 turned it on."). This is neither a "contribution" to any infringement, nor is it 24 "material." 25 First, it is not a contribution because, accepting the allegations as true, 26 CloudFlare’s provision of web security and optimization services in no way 27 encourages the acts of infringement by the adult websites or their users. See, e.g., 28 Cobbler Nevada, LLC v. Gonzales, No. 3:15-CV-00866, 2016 WL 3392368, at *2-3-6-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 (D. Or. June 8, 2016) (owner of internet connection used to distribute copyrighted 2 material did not substantially contribute to underlying infringement by "fail[ing] to 3 secure, police, and protect" internet connection after receiving copyright notices, 4 because he had not "promoted, encouraged, enticed, persuaded, or induced another 5 to infringe"). Nor has ALS pleaded any other conduct by CloudFlare that could be 6 said to persuade or entice third parties to infringe ALS’s copyrights. 7 Second, ALS’s own allegations confirm that any such "contribution" by 8 CloudFlare is not material, because under the Ninth Circuit’s governing Amazon 9 standard, there are no "simple measures" CloudFlare could take "to prevent further 10 damage to [the] copyrighted works." Amazon, 508 F.3d at 1172. Indeed, there are 11 no measures of any kind that CloudFlare could take to prevent this alleged 12 infringement, because the termination of CloudFlare’s CDN services would have no 13 impact on the existence and ability of these allegedly infringing websites to continue 14 to operate. See FAC ¶ 30 (CDN services speed "load times" for a given website and 15 "decrease [] spam and other attacks" on the origin server hosting the website in 16 question).2 Stated another way, as a practical matter, terminating CloudFlare’s 17 services does not alter the content of these websites nor remove them from the web. 18 Nor does ALS’s bare recitation of the elements of contributory infringement 19 suffice to support a material contribution theory. See FAC ¶ 8 ("certain of the 20 Defendants named herein have, with actual and/or constructive knowledge of the 21 direct infringements of ALS works, materially contributed to or aided such 22 infringement"); FAC ¶ 92 ("All named Defendants... have, with actual and/or 23 constructive knowledge of direct infringements of ALS’s copyrighted works, 24 materially contributed to or aided in such infringement."). "[A] complaint must 25 contain sufficient factual matter, accepted as true, to'state a claim to relief that is 26 plausible on its face.’" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). 27 This is no surprise, given the ancillary nature of CloudFlare’s services, and 2 28 how far removed those services are from the infringements themselves.-7-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 Under this plausibility standard, "a formulaic recitation of the elements of a cause of 2 action will not do." Twombly, 550 U.S. at 555. Plaintiff’s material contribution 3 theory fails. 4 2. ALS’s inducement theory fails because it lacks any factual allegations that CloudFlare’s services somehow induced the 5 alleged infringement 6 Plaintiff also purports to state a claims for contributory copyright 7 infringement under the "inducement" theory, which requires proof that a defendant 8 "intentionally induc[ed] or encourage[ed] direct infringement" by a third party. See 9 Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930, 936-37 10 (2005) ("The classic instance of inducement is by advertisement or solicitation that 11 broadcasts a message designed to stimulate others to commit violations."). In 12 Grokster, the Supreme Court held that "one who distributes a device with the object 13 of promoting its use to infringe copyright, as shown by clear expression or other 14 affirmative steps taken to foster infringement, is liable for the resulting acts of 15 infringement by third parties." Grokster, 545 U.S. at 919; see also Leonard v. 16 Stemtech Int’l Inc., No. 15-3198, 2016 WL 4446560, at *5 (3d Cir. Aug. 24, 2016) 17 (affirming inducement finding where defendant required its distributors to use 18 infringing materials). Inducement "is a legal determination, and dismissal may not 19 be avoided by characterizing a legal determination as a factual one." Perfect 10, 20 Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 802 (9th Cir. 2007). 21 Here, ALS has pleaded no facts regarding such a theory. Instead, ALS makes 22 only conclusory allegations using the term inducement (see FAC ¶¶ 39, 93), devoid 23 of any factual support. For instance, ALS Scan does not plead (as it must) facts 24 sufficient to allege that CloudFlare solicited, advertised, promoted or rewarded acts 25 of direct infringement by others, or that CloudFlare was created for the purpose of 26 facilitating mass copyright infringement. Contrast Grokster, Ltd., 545 U.S. at 939 27 (Grokster intentionally targeted former Napster customers, advertised availability of 28 copyrighted materials, and actively supported users in finding specific files).-8-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 Nowhere does ALS allege (nor could it) that CloudFlare provides its services "with 2 the object of promoting its use to infringe copyright," see Grokster, 545 U.S. at 919, 3 or that CloudFlare’s services are not "capable of substantial noninfringing uses." 4 Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 442, 456 (1984). 5 To the contrary, ALS’s allegations tacitly acknowledge (see FAC ¶¶ 29, 30, 32) that 6 CloudFlare’s services are "widely used for legitimate, unobjectionable purposes." 7 See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 442, 456 8 (1984) (Betamax device which allowed users to record copyrighted television 9 programs was capable of substantial non-infringing uses, and thus sales of the 10 devise did not constitute contributory copyright infringement). ALS’s bare 11 recitation of the term "inducement" is insufficient to state a claim under Iqbal. 12 B. ALS Fails To State A Claim For Vicarious Copyright Infringement Because It Has Not Alleged Any Facts Supporting The Bare 13 Elements, Nor Could It Do So 14 ALS’s vicarious copyright infringement cause of action similarly fails 15 because it alleges no facts supporting either element of this claim under Iqbal, nor 16 could it make such allegations based on the nature of CloudFlare’s services. To 17 properly plead a vicarious copyright infringement claim, a plaintiff must allege facts 18 establishing that the defendant (1) has a right and ability to supervise or control the 19 direct infringer, and (2) derives a direct financial benefit from the infringement. 20 Amazon, 508 F.3d at 1173. The necessary level of control requires that the 21 defendant have "both a legal right to stop or limit the directly infringing conduct, as 22 well as the practical ability to do so." Id. A "direct" financial benefit means, for 23 instance, that a defendant draws or gains subscribers specifically due to the 24 availability of infringing material. Ellison v. Robertson, 357 F.3d 1072, 1079 (9th 25 Cir. 2004) (rejecting vicarious liability claim where plaintiff failed to show that 26 defendant "attracted or retained subscriptions because of the infringement or lost 27 subscriptions because of [defendant’s] eventual obstruction of the infringement"). 28-9-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 Here, ALS pleads only the bare elements of vicarious liability – that "[a]ll 2 named Defendants... have, with the right and ability to control or supervise the 3 direct infringement averred herein, failed to exercise such right and ability and have 4 directly benefited financially from such infringing activity." FAC ¶ 96; see also 5 FAC ¶ 83 (Defendants "make money by continuing to do commerce with sites that 6 draw traffic through the lure of free infringing content."). Once again, a complaint 7 may not survive dismissal by merely parroting the elements, with no factual meat 8 supporting the claim. Iqbal, 556 U.S. at 678-79. 9 Moreover, the facts ALS pleads elsewhere demonstrate that this defect is not 10 curable by amendment. Specifically, ALS alleges that CloudFlare provides 11 automated CDN services to the allegedly infringing websites, which CDN services 12 speed "load times" for a given website and "decrease [] spam and other attacks" on 13 the origin server hosting the website in question. FAC ¶ 30. But "control" 14 sufficient to impose vicarious liability means "both a legal right to stop or limit the 15 directly infringing conduct, as well as the practical ability to do so." Amazon, 508 16 F.3d at 1173. The facts pleaded confirm that CloudFlare neither has the right and 17 ability, nor could it exercise such control, given the (indisputable) technical manner 18 in which caching services operate. By providing its services to websites, CloudFlare 19 does not supervise these websites’ choice of content, and could do nothing to end 20 this alleged infringement. See Routt v. Amazon.com, Inc., 584 F. App’x 713, 714-15 21 (9th Cir. 2014) (affirming dismissal of complaint on grounds that Amazon had no 22 right or ability to control infringement undertaken by participants in Amazon’s 23 affiliate-marketing program). Stated another way, even if CloudFlare’s services 24 were terminated, the 11 allegedly infringing sites could still display whatever 25 content they wish (infringing or otherwise) to a worldwide audience on the web. 26 That is the very nature of a temporary cache – removing it has no impact on the 27 origin copy, which continues to exist. See FAC ¶ 32 (CloudFlare "cache[s] mirror 28 copies of" the sites in question). Nor does CloudFlare’s provision of web security-10-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 services to protect websites from malicious attacks exert any "legal right to stop or 2 limit the directly infringing conduct, [nor] the practical ability to do so." Amazon, 3 508 F.3d at 1173. Absent CloudFlare’s security services the sites would be more 4 prone to hacking, but their very existence and contents would remain unaffected. 5 FAC ¶ 30 ("CloudFlare-powered websites see... a decrease in spam and other 6 attacks.") 7 Likewise, the facts pleaded show that ALS could not demonstrate that 8 CloudFlare receives a direct financial benefit from the infringement. As the Court 9 held in Ellison: "the central question of the'direct financial benefit’ inquiry in this 10 case is whether the infringing activity constitutes a draw for subscribers, not just an 11 added benefit." Ellison, 357 F.3d at 1079. Here, ALS nowhere alleges that the 12 underlying infringing activity by the adult websites in question somehow constitutes 13 a draw for CloudFlare to obtain more subscribers to its web security and 14 optimization services. See Ellison, 357 F.3d at 1079 (vicarious liability claim failed 15 where defendant did not "attract[] or retain[] subscriptions because of the 16 infringement"). ALS pleads no such facts here, nor could it, given the nature of 17 CloudFlare’s services as alleged in ALS’s own complaint. 18 C. ALS Fails To State A Claim For Any Form Of Secondary Copyright Infringement Against CloudFlare, For Failure To 19 Properly Plead Any Underlying Direct Infringements 20 It is axiomatic that a secondary infringement claim requires an underlying 21 claim of direct infringement. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d at 1169 22 ("Secondary liability for copyright infringement does not exist in the absence of 23 direct infringement by a third party.") (internal citation omitted). As with all claims, 24 underlying direct infringement must be properly pleaded under the governing 25 plausibility standards articulated by the Supreme Court.3 See Palmer Kane LLC v. 26 27 3 Iqbal, 556 U.S. at 678 ("To survive a motion to dismiss, a complaint must 28 contain sufficient factual matter, accepted as true, to'state a claim to relief that is-11-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 Scholastic Corp., 2013 WL 709276, at *4 (S.D.N.Y. Feb. 27, 2013) (granting 2 dismissal under Iqbal and Twombly because plaintiff "fails to sufficiently plead the 3 works at issue, the infringing acts, and the relevant time period in which the 4 infringing acts occurred"). 5 Here, ALS’s conclusory allegations fail to plead (1) any particular direct 6 infringement of (2) any particular ALS image or video by (3) any particular person 7 or entity at (4) any particular time within the statute of limitations period that (5) 8 could plausibly serve as a basis for holding CloudFlare secondarily liable. It is 9 insufficient to attach to the complaint a list of every copyright registration a plaintiff 10 may own, as ALS has done here (see FAC ¶ 21 & Ex. 1); rather, the particular 11 copyrights allegedly infringed must be pleaded. E. W. Sounds, Inc. v. Phoenix, 2012 12 WL 4003047, at *3 (C.D. Cal. Sept. 10, 2012) ("To withstand a motion to dismiss, a 13 complaint based on copyright infringement must allege... which original works are 14 the subject of the copyright claim.") (quotation omitted). Without a validly pleaded 15 underlying direct infringement, ALS’s contributory and vicarious copyright 16 infringement claims against CloudFlare cannot survive this motion. Ledesma v. 17 Corral, No. 2:15-CV-04266, 2016 WL 827743, at *3 (C.D. Cal. Mar. 2, 2016) 18 (dismissing direct and contributory infringement claims with prejudice as 19 insufficiently pled where amended complaint offered only the "bare recitation of a 20 few terms of art" and "simply stat[ed] legalese in lieu of offering supporting facts 21... merely reciting the magic words of a cause of action is insufficient to survive a 22 motion to dismiss."); see also E. W. Sounds, Inc., 2012 WL 4003047, at *3 (plaintiff 23 must plead "by what acts during what time the defendant infringed the copyright").4 24 25 plausible on its face’ [such as where] the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the 26 misconduct alleged.") (quoting Twombly, 550 U.S. at 556, 570). 27 4 In addition to its reliance on a poorly pled factual basis and misapplication of 28 the relevant law, ALS’s copyright claims ultimately will fail because CloudFlare is-12-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 II. ALS FAILS TO STATE A CLAIM FOR CONTRIBUTORY TRADEMARK INFRINGEMENT 2 ALS’s contributory trademark claim fails for multiple independent reasons. 3 A. ALS Cannot Manufacture A Separate Trademark Claim Out Of 4 Its Copyright Claim Given The Indivisibility Of The Underlying Conduct 5 6 As a preliminary matter, ALS alleges that the exact same actions pertaining to 7 the exact same content form the basis for both its copyright and trademark claims. 8 In support of its trademark claim in particular, ALS contends that its copyrighted 9 adult content has been reproduced and published on various websites without its 10 authorization – and that the content bears both copyright notices and ALS trademark 11 watermarks.5 See FAC ¶¶ 9, 20, 22, 23, 77, 81, 85. ALS’s grievance thus concerns 12 the reproduction, distribution, and display of creative works – issues governed by 13 copyright law. See 17 U.S.C. § 106 (detailing exclusive rights of copyright owners). 14 The Supreme Court has recognized that trademark law should not "conflict 15 with the law of copyright," and "the right to copy" communicative materials is a 16 copyright-governed act. Dastar Corp. v. Twentieth Century Fox Film Corp., 539 17 18 entitled to safe harbor pursuant to the Digital Millennium Copyright Act, 17 U.S.C. 19 § 512 et seq. The DMCA protects internet service providers like CloudFlare from the potentially crippling costs of being held liable for the allegedly infringing 20 behavior of third parties who may use the provider’s services. In enacting the 21 DMCA, Congress made clear its belief that "without clarification of their liability, service providers may hesitate to make the necessary investment in the expansion of 22 the speed and capacity of the Internet." S. Rep. No. 105-190 at 8 (1998). ALS’s 23 plea to this Court for a sympathetic ear to impose liability on intermediaries like CloudFlare because ALS finds it "hard" to enforce its ownership rights over adult 24 material runs afoul of the DMCA’s statutory scheme squarely addressing the issue. 25 ALS’s copyright claims should be dismissed on CloudFlare’s instant motion, but even were they to survive the pleadings stage, CloudFlare will prevail on its 26 affirmative defense of DMCA safe harbor. 27 5 ALS makes no allegation that it used any technical protection measures (TPMs) 28 to protect its copyrighted works or that such TPMs were circumvented.-13-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 U.S. 23, 33-34 (2003). To extend trademark protection to preclude distribution of 2 copyright-governed content in which a trademark also happens to be implicated 3 "would create a species of mutant copyright law." Id. In order to avoid such a 4 conflict, the Dastar Court rejected Fox Film’s attempt to hold video series publisher 5 Dastar liable for trademark infringement because Dastar had not attributed certain 6 World War II film coverage, originally produced by Fox, to Fox. Id. at 26. The 7 Supreme Court rejected the trademark claim, because recognizing a trademark claim 8 which covered the exact same material subject to an expired copyright would 9 effectively grant an unauthorized perpetual copyright. In doing so, the Court further 10 recognized that its reasoning should also require the Copyright Act to preclude 11 "Lanham Act liability for crediting the creator if that should be regarded as 12 implying the creator’s'sponsorship or approval’ of the copy." Id. at 36. 13 Multiple courts have extended Dastar’s reasoning to preclude trademark 14 claims that are coextensive with copyright claims, because the alleged act of 15 trademark infringement is merely the unauthorized reproduction of a copyrighted 16 work. See Phoenix Entm’t Partners v. Rumsey, No. 15-2844, 2016 WL 3924347, at 17 *9 (7th Cir. July 21, 2016). In Phoenix, the Seventh Circuit affirmed a district 18 court’s dismissal of trademark claims based on the visual display of a trademark on 19 the screen of a copyrighted karaoke video recording, explaining that: 20 Because the creative content of the karaoke tracks at issue in this case 21 presumably remains subject to copyright protection, the unauthorized 22 display and performance of those tracks may well present an actionable 23 claim of copyright violation, as we have said. But the routine display 24 of Slep–Tone’s embedded trademark during the performance of 25 [copyrighted] tracks does not, without more, support a claim of 26 trademark infringement or unfair competition under the Lanham Act. 27 Id. The District Court for the District of Oregon reached the same conclusion, 28 in a parallel case now briefed and awaiting oral argument before the Ninth Circuit:-14-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 Slep–Tone’s claimed injuries are copyright injuries and not trademark 2 injuries. Slep–Tone alleges that it was injured when the tracks were 3 performed or presented at Canton’s restaurant without authorization 4 and without a license, i.e. it was stripped of control of the use of its 5 created work. The Copyright Act, and not the Lanham Act, is what 6 protects against these types of unauthorized uses. 7 Slep-Tone Entm’t Corp. v. Canton Phoenix Inc., No. 3:14-CV-00764, 2014 WL 8 5817903, at *3 (D. Or. Nov. 7, 2014). See also Lions Gate Entm’t Inc. v. TD 9 Ameritrade Servs. Co., Inc., No. 15-CV-05024, 2016 WL 1027998, at *12 (C.D. 10 Cal. Mar. 14, 2016), reinstating dilution claim only on partial reconsideration 2016 11 WL 4134495 (C.D. Cal. Aug. 1, 2016) (dismissing trademark claim based on 12 defendants’ copying of movie audio clip containing a trademarked phrase, where 13 copyright aspects were "the real basis of the claims"). 14 This Court should reject ALS’s reaching attempt to recast its copyright 15 infringement claim as a trademark infringement claim. 16 B. ALS Fails To Properly Plead The Elements Of Either An Inducement Theory Or A Direct Control Theory Of Contributory 17 Trademark Infringement 18 Secondary trademark infringement is premised on the same doctrines as 19 secondary copyright infringement but even more stringently applied. Visa, 494 F.3d 20 at 806 ("The tests for secondary trademark infringement are even more difficult to 21 satisfy than those required to find secondary copyright infringement."). A defendant 22 can be held liable for contributory trademark infringement if it (1) "intentionally 23 induced the primary infringer to infringe" or (2) "continued to supply an infringing 24 product to an infringer with knowledge that the infringer is mislabeling the 25 particular product supplied." Id. at 807 (internal citations omitted). As for the latter 26 formulation, when the alleged infringer supplies a service rather than a product, 27 "[f]or liability to attach, there must be'[d]irect control and monitoring [by the 28-15-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 secondary infringer] of the instrumentality used by a third party to infringe the 2 plaintiff’s mark.’" Id. 3 1. ALS does not allege that CloudFlare intentionally induced trademark infringement 4 5 Contributory trademark infringement premised on inducement requires a 6 plaintiff to cite "affirmative acts" a defendant has taken to suggest or invite third 7 parties to directly infringe a trademark. See Visa, 494 F.3d at 807 (affirming grant 8 of motion to dismiss contributory trademark claim where Perfect 10 "cite[d] no 9 affirmative acts by [Visa] suggesting that third parties infringe Perfect 10’s mark, 10 much less induce them to do so"). No such affirmative acts are pleaded here. For 11 instance, ALS does not allege that CloudFlare designed its system to facilitate 12 trademark infringement, advertised the availability of trademark-infringing 13 materials, or otherwise actively encouraged trademark infringement to occur. See 14 Part I-A-2, supra. As with its copyright inducement theory, ALS only uses the bare 15 term "inducement" in a conclusory fashion, which fails under Iqbal. 16 See FAC ¶¶ 39, 85, 10; see also Newborn v. Yahoo!, Inc., 391 F. Supp. 2d 181, 191 17 (D.D.C. 2005) ("conclusory allegation" that Yahoo "allowed unauthorized third 18 party use of the plaintiff’s alleged trademark" in a domain name did not state 19 contributory trademark infringement claim). 20 2. ALS does not allege that CloudFlare controls the instrumentalities of others’ trademark infringement 21 22 ALS likewise has failed to allege any facts indicating that CloudFlare has 23 "‘direct control and monitoring of the instrumentality used by a third party to 24 infringe the plaintiff’s mark.’" Visa, 494 F.3d at 807 (quoting Lockheed Martin 25 Corp. v. Network Solutions, Inc., 194 F.3d 980, 984 (9th Cir. 1999)). Visa explained 26 that control sufficient to state a claim requires the defendant to "ha[ve] the power to 27 remove infringing material from these [other] websites or directly stop their 28 distribution over the Internet." Id.-16-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 ALS has made no such allegations here – nor could it, given the nature of 2 how CloudFlare’s services work. ALS alleges that CloudFlare provides services 3 that enhance security, optimize performance and speed web page load times. See 4 FAC ¶¶ 29, 30, 32, 33, 34. None of these services grant CloudFlare "the power to 5 remove infringing material from" these websites or terminate their presence on the 6 internet. Visa, 494 F.3d at 807. 7 Indeed, ALS’s allegations mirror the contributory trademark infringement 8 claim the Ninth Circuit rejected in Lockheed Martin. There, a government 9 contractor sued a domain name registrar, Network Solutions, for contributory 10 trademark infringement because third parties had registered domain names which 11 resembled Lockheed’s marks. 194 F.3d at 983. The Ninth Circuit determined that 12 Network Solutions could not be held contributorily liable because it simply provided 13 a "routing service," and such "rote," automated, technical internet services do not 14 embody the level of control necessary to impose contributory liability. Id. at 984-15 85. The Lockheed court likened a domain name registrar and IP Address router to 16 "the United States Postal Service" which merely receives information and then 17 directs it to the appropriate location. Id. The Ninth Circuit recognized that it would 18 be a "stretch" to extend contributory trademark liability to cover such services, 19 because they did "not entail the kind of direct control and monitoring required" to 20 establish contributory liability. Id. 21 Likewise here, ALS does not allege that CloudFlare has direct control over or 22 monitors the infringing content. As a result, ALS never alleges (nor could it) that, 23 were CloudFlare to cease its services altogether, the underlying direct infringements 24 displayed on the infringing websites would cease or be removed. See Visa, 494 F.3d 25 at 807. Because ALS’s allegations implicitly recognize that the infringing websites 26 could still infringe the ALS Scan mark even if CloudFlare ceased its services, it fails 27 to state a contributory trademark infringement claim. See, e.g., Gibson Guitar Corp. 28 v. Viacom Int’l Inc., No. 12-CV-10870, 2013 WL 2155309, at *5 (C.D. Cal. May-17-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 17, 2013), aff’d, 640 F. App’x 677 (9th Cir. 2016) (Viacom could not be held 2 contributorily liable for another’s trademark infringement where infringement could 3 still occur "independently of anything Viacom might do"). 4 C. ALS Also Fails To Properly Plead An Underlying Direct Trademark Infringement On Which To Base Its Contributory 5 Trademark Claim Against CloudFlare 6 "By definition, there can be no liability for contributory [trademark] 7 infringement unless there is direct infringement." 4 McCarthy on Trademarks and 8 Unfair Competition § 25:17 (4th ed.). Where a direct infringement claim fails, a 9 contributory claim must also fail. See e.g., Beachbody, LLC v. Universal Nutrients, 10 LLC, No. 16-CV-02015, 2016 WL 3912014, at *3 (C.D. Cal. July 18, 2016) (citing 11 Visa, 494 F.3d at 807) (dismissing contributory infringement claim after dismissing 12 direct infringement premised on use of "Shakeology" mark in comparative 13 advertising and on store receipts). 14 As with ALS’s secondary copyright claims, the First Amended Complaint 15 does not properly plead any act of underlying direct trademark infringement on 16 which to base its contributory claim against CloudFlare. It states in general terms 17 that ALS content bearing ALS trademarks has been the subject of notifications to 18 defendant companies (FAC ¶¶ 76-81, 85) – but it never pleads which listings were 19 infringing, who infringed them, or when those notifications were sent. "Rule 8 does 20 not empower respondent to plead the bare elements of his cause of action... and 21 expect his complaint to survive a motion to dismiss." Iqbal, 556 U.S. at 687. 22 Moreover, the sparse facts ALS does plead are not actionable because the 23 alleged trademark use merely identified genuine (even if unauthorized) copies of 24 actual ALS content. See FAC ¶¶ 3, 9, 20, 21, 22, 23, 24, 76, 77, 81, 85. Plaintiff 25 has thus pleaded a nominative fair use, which cannot form the basis for a 26 contributory trademark infringement claim. See Adobe Sys. Inc. v. Christenson, 809 27 F.3d 1071, 1081-82 (9th Cir. 2015). In Adobe, the plaintiff alleged that the 28 defendant had committed trademark infringement by engaging in the unauthorized-18-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 sale of copyrighted software bearing actual Adobe logos. Id. Adobe did not claim 2 "that the marks did not truthfully label genuine Adobe products as such." Id. Thus, 3 "where a defendant uses the mark to refer to the trademarked good itself," there can 4 be no trademark liability due to the doctrine of nominative fair use. Id. at 1081 5 (internal citation omitted). The nominative fair use doctrine ensures that "trademark 6 law does not reach the sale of genuine goods bearing a true mark even though such 7 sale is without the mark owner’s consent." Id. (internal citation omitted). See also 8 Stevo Design, Inc. v. SBR Mktg. Ltd., 919 F. Supp. 2d 1112, 1124 (D. Nev. 2013) 9 (dismissing trademark claim on nominative fair use grounds because "it would be 10 difficult (if not impossible) to identify Stevo’s sports analysis services without using 11 these marks"); Designer Skin, LLC v. S & L Vitamins, Inc., 560 F. Supp. 2d 811, 12 821 (D. Ariz. 2008) (the unauthorized re-sale of tanning products was a nominative 13 fair use, and not an actionable trademark infringement, where it was "undisputed 14 that S & L Vitamins visibly uses the marks on its websites to accurately identify 15 Designer Skin’s products"). 16 Here, ALS pleads that its creative content "display[s] both a copyright 17 notification... as well as ALS’s registered'ALS Scan’ trademark." FAC ¶¶ 23, 85. 18 Thus, like in Adobe, ALS is not contesting that the images and videos are actual 19 ALS content; it is instead complaining that those specific copies of ALS content are 20 unauthorized. Again, ALS’s "major gripe" is not a trademark issue at all – 21 unauthorized copies are better attacked "via its copyright claim." See Adobe, 809 22 F.3d at 1082. The Court should dismiss ALS’s contributory trademark infringement 23 claim for this additional reason. 24 III. ALS SCAN’S UNFAIR COMPETITION CLAIM IS BARRED ON MULTIPLE GROUNDS 25 26 ALS’s state law unfair competition count necessarily fails because it claims to 27 be based solely on alleged "acts of trademark infringement, direct and secondary," 28 that "constitute unfair competition." FAC ¶ 108. As explained above, ALS has-19-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 failed to properly plead any contributory trademark infringement as to CloudFlare, 2 and thus, has no anchor for its unfair competition claim. See Cal. Bus. & Prof. Code 3 § 17200; see also Local TV, LLC v. Superior Court, No. B271883, 2016 WL 4 4578645, at *8 (Cal. Ct. App. Sept. 2, 2016) (Section 17200 "‘borrows’ violations 5 of other laws and treats them as unlawful practices," and unfair competition claims 6 must be dismissed when the "sole factual basis" for the claim is found defective); 7 Pellerin v. Honeywell Int’l, Inc., 877 F. Supp. 2d 983, 992 (S.D. Cal. 2012) 8 (dismissing unfair competition claim based solely on insufficiently pled causes of 9 action, thus plaintiff "cannot state a UCL claim based on these allegations"). 10 Moreover, even if ALS had properly pleaded an underlying trademark claim 11 on which to base its unfair competition claim, the unfair competition claim 12 nevertheless is barred by Section 230 of the Communications Decency Act. The 13 CDA provides that "[n]o provider or user of an interactive computer service shall be 14 treated as the publisher or speaker of any information provided by another 15 information content provider," 47 U.S.C. § 230(c)(1), and "expressly preempts state 16 law" assigning liability to online service providers due to user behavior. Perfect 10, 17 Inc. v. CCBill LLC, 488 F.3d 1102, 1118 (9th Cir. 2007). The CDA gives "broad 18 federal immunity to any cause of action that would make service providers liable for 19 information originating with a third-party user of the service," and the Ninth Circuit 20 has explicitly held that unfair competition claims, like other state claims, cannot be 21 raised against service providers due to the behavior of their users. Id. at 1118-19 22 (CDA bars liability for "state laws protecting intellectual property," which include 23 "trademark, unfair competition, dilution, right of publicity and trade defamation, to 24 name just a few") (emphasis added). Because ALS’s state law unfair competition 25 claim against CloudFlare attempts to hold CloudFlare liable for the behavior of 26 websites utilizing CloudFlare’s services, the unfair competition claim is "expressly" 27 preempted under the CDA and must be dismissed. See Perfect 10 v. CCBill LLC, 28 340 F. Supp. 2d 1077, 1108 (C.D. Cal. 2004), aff’d, 488 F.3d at 1119 ("the-20-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 immunity provided by the CDA does apply to Perfect 10’s Claim 6 for unfair 2 competition under the UCL").6 3 As a third and independent reason for dismissal, the conduct underpinning 4 ALS’s entire case (including the unfair competition claim) is a copyright harm. As 5 a court in this district recently held, plaintiffs cannot assert both trademark and 6 unfair competition claims where the copyright aspects are "the real basis of the 7 claims." Lions Gate Entm’t, 2016 WL 1027998, at *12. 8 In Lions Gate, the plaintiff alleged that an advertising campaign referencing 9 the line "Nobody puts Baby in a corner" from the movie Dirty Dancing constituted 10 trademark infringement and unfair competition in addition to copyright 11 infringement. The court recognized that, as here, the case was about "the right to be 12 the exclusive licensor and user" of a copyrighted movie and was "based on 13 Defendants essentially copying Plaintiff’s intellectual property." Id. at *13-14. 14 Citing Dastar among other authorities, the Court dismissed the trademark and unfair 15 competition claims with prejudice because they were "preempted by the Copyright 16 Act and so any amendment would be futile." Id. 17 The same result is warranted here. Though purportedly based on its 18 contributory trademark claim, ALS’s unfair competition count complains about the 19 unauthorized reproduction of copyrighted images and videos; such a state law claim 20 is squarely preempted by the federal Copyright Act. See Sybersound Records, Inc. 21 v. UAV Corp., 517 F.3d 1137, 1150 (9th Cir. 2008) (dismissing Section 17200 22 unfair competition claim as preempted by Copyright Act); Kodadek v. MTV 23 Networks, Inc., 152 F.3d 1209, 1212 (9th Cir. 1998) (dismissing Section 17200 24 6 CDA immunity from unfair competition claims for service providers has long 25 been the law in the Ninth Circuit. Plaintiff ALS’s counsel in this case was also 26 counsel for CCBill, who successfully defeated Perfect 10’s Section 17200 unfair competition claim on CDA immunity grounds and won affirmance of that ruling by 27 the Ninth Circuit. See Perfect 10, Inc. v. CCBill, 488 F.3d at 1107 (listing counsel 28 for defendants/cross-appellants CCBill).-21-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 1 unfair competition claim as preempted by copyright); Ryan v. Editions Ltd. W., Inc., 2 417 F. App’x 699, 701 (9th Cir. 2011). For all of these reasons, the dismissal of this 3 claim should be with prejudice. 4 CONCLUSION 5 For the foregoing reasons, the Court should grant CloudFlare’s Motion to 6 Dismiss for Failure to State a Claim Pursuant to Rule 12(b)(6). 7 8 Dated: September 26, 2016 Respectfully submitted, 9 QUINN EMANUEL URQUHART & 10 SULLIVAN LLP 11 12 By 13 Rachel Kassabian 14 Attorney for Defendant 15 CloudFlare, Inc. 16 17 18 19 20 21 22 23 24 25 26 27 28-22-CLOUDFLARE’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6)

MINUTES OF MOTION BY PLAINTIFF ALS SCAN, INC. FOR A PRELIMINARY INJUNCTION AGAINST DEFENDANT TIGER MEDIA, INC. {{9}} ; DEFENDANT TIGER MEDIA INC.'S MOTION TO DISMISS PLAINTIFFS FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM {{35}} Hearing held before Judge George H. Wu. Based on the Tentative, and for reasons stated on the record, Defendant Tiger's motion is GRANTED WITH LEAVE TO AMEND. Plaintiff's motion for preliminary injunctive relief is MOOT. Court Reporter: Katie Thibodeaux. (mrgo)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES-GENERAL Case No. CV 16-5051-GW(AFMx) Date October 3, 2016 Title ALS Scan, Inc. v. Cloudflare, Inc., et al. Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE Javier Gonzalez Katie Thibodeaux Deputy Clerk Court Reporter/Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Jay M. Spillane Gary L. Bostwick Lawrence G. Walters Corey D. Silverstein PROCEEDINGS: MOTION BY PLAINTIFF ALS SCAN, INC. FOR A PRELIMINARY INJUNCTION AGAINST DEFENDANT TIGER MEDIA, INC. [9]; DEFENDANT TIGER MEDIA INC.’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM [35] The Court’s Tentative Ruling is circulated and attached hereto. Court hears oral argument. Based on the Tentative, and for reasons stated on the record, Defendant Tiger’s motion is GRANTED WITH LEAVE TO AMEND. Plaintiff’s motion for preliminary injunctive relief is MOOT.: 20 Initials of Preparer JG CV-90 (06/04) CIVIL MINUTES-GENERAL Page 1 of 1 ALS Scan, Inc. v. CloudFlare, Inc., et al., Case No. CV-16-5051-GW-AFM Tentative Rulings on: (1) Defendant Tiger Media, Inc.’s Motion to Dismiss, and (2) Plaintiff’s Motion for Preliminary Injunction I. Introduction ALS Scan, Inc. ("Plaintiff") sues CloudFlare, Inc. ("CloudFlare"); Tiger Media, Inc. ("Tiger"); OVH SAS; Hebergement OVH Inc.; Dolphin Media Ltd. ("Dolphin"); Hivelocity Ventures Corporation; Steadfast Networks, LLC; Duodecad IT Services Luxembourg S.A.R.L.; and Does 1-10 (collectively, "Defendants") for various claims related to Defendants’ alleged infringement of Plaintiff’s copyrighted and trademarked works. See generally First Am. Compl. ("FAC"), Docket No. 33. The FAC asserts seven causes of action: (1) direct copyright infringement, against Dolphin and Does 1-5; (2) contributory copyright infringement, against all Defendants except Dolphin; (3) vicarious copyright infringement, against all Defendants except Dolphin; (4) direct trademark infringement, against Dolphin and Does 1-5; (5) direct trademark counterfeiting, against Dolphin and Does 1-5; (6) contributory trademark infringement, against all Defendants except Dolphin; and (7) unfair competition, against all Defendants. Id. Plaintiff owns a library of copyrighted and trademarked works of adult entertainment. Id. ¶ 3. Plaintiff alleges that its works are repeatedly infringed on pirate Internet sites1 that display infringing adult content. Id. ¶ 4. These sites are allegedly supported by third-party service providers that continue doing business with the sites even after receiving actual notice of infringement from Plaintiff. Id. ¶ 6. Plaintiff alleges that the pirate sites monetize Internet traffic through advertisers and "traffic brokers," who pay to receive traffic from pirate sites and also resell traffic to purchasers. Id. According to Plaintiff, Tiger owns or operates an online advertising brokerage business called "JuicyAds," which caters to the adult entertainment industry. Id. ¶ 11. JuicyAds’ Terms of Service explains that it conducts business with both "Publishers" and "Advertisers" – Publishers are owners or operators of websites with adult content who sell advertising space through the JuicyAds service, whereas Advertisers buy advertising space on Publishers’ websites through the JuicyAds service. Id. ¶ 43. 1 Plaintiff includes the names of some of these pirate sites, including imghili.net; namethatpornstar.com; slimpics.com; cumonmy.com; bestofsexpics.com; teenbe.com; mymaturespace.com; spankwiki.net; and stooorage.com. Id. ¶ 5. 1 A Publisher applies for and obtains a user account with JuicyAds through the juicyads.com website, and informs JuicyAds of the websites the Publisher will use to deliver Internet traffic to Advertisers. Id. ¶ 48. The Publisher then receives a PIN it can use to place advertisements served by JuicyAds on the Publisher’s website. Id. Plaintiff alleges that the registration process is automated and does not involve contact with JuicyAds personnel. Id. ¶ 48. Publishers choose the price for their traffic, from which JuicyAds takes a 25% commission. Id. ¶ 50. Advertisers can choose to purchase traffic from either specific Publishers or across the entire range of Publishers. Id. Plaintiff alleges that when a consumer clicks on a JuicyAds advertisement on a Publisher site, the consumer is transported temporarily to the JuicyAds server, and then to the website of the Advertiser. Id. ¶ 51. Plaintiff alleges that JuicyAds reserves sole discretion and ability to suspend or terminate any users’ account at any time. Id. ¶ 46. Moreover, JuicyAds’ Terms of Service prohibits websites that engage in "[d]istribution of any copyrighted materials without permission, or linking to any copyrighted materials." Id. JuicyAds reserves the right to investigate any account and suspend payments and access to the JuicyAds service. Id. In addition, Plaintiff alleges that it is JuicyAds’ policy to remove or block access to material it believes infringes on copyrighted materials; remove or disable access to material claimed to be infringing copyrighted material upon notification to its Designated Agent; and remove and discontinue service to repeat offenders. Id. ¶ 47. Plaintiff alleges that it has sent 195 separate email notifications to JuicyAds with multiple examples of infringing ALS images on certain Publishers’ websites, but JuicyAds refuses to terminate these Publishers’ accounts. Id. ¶ 53. Moreover, Plaintiff claims that it hired an employee to obtain a personal JuicyAds account and submit information to JuicyAds that its website was www.stolenalspictures.com; JuicyAds thereafter provided the employee with information and hyperlinks to place advertisements on that website. Id. ¶ 55. The homepage of the website states that it displays "Infringing ALS Photos Made Free," and describes the website’s process for stealing ALS’s copyrighted images. Id. ¶ 56. However, despite this content, Plaintiff alleges that the website remains a Publisher in the JuicyAds network. Id. ¶57. Through its operation of JuicyAds, Plaintiff alleges that Tiger has materially contributed to the infringing conduct of its Publishers. Id. ¶ 62. Plaintiff seeks actual damages, statutory damages, disgorgement of profits obtained from the infringing activity, trebling of damages, 2 costs and attorneys’ fees, preliminary and permanent injunctive relief, and such other relief as the Court deems appropriate. Id. at 12:20-13:1. Now pending before the Court is Tiger’s Motion to Dismiss the FAC as it relates to Tiger. See Mot. to Dismiss ("MTD"), Docket No. 36. Plaintiff has opposed the Motion, see Opp’n to MTD ("Opp’n"), Docket No. 43, to which Tiger has replied, see Reply, Docket No. 46. Also pending before the Court is Plaintiff’s Motion for a Preliminary Injunction Against Tiger. See Mot. for Prelim. Injunction ("Mot."), Docket No. 9. Tiger has opposed the Motion, see Opp’n to Mot., Docket No. 41, to which Plaintiff has replied, see Reply, Docket No. 44. II. Tiger’s Motion to Dismiss Tiger moves to dismiss the FAC under Rule 12(b)(6), on the grounds that Plaintiff fails to state a claim for secondary liability against Tiger.2 See generally MTD. A. Legal Standard Under Rule 12(b)(6), a defendant may move to dismiss for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A complaint may be dismissed for failure to state a claim for one of two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008) ("Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory."). In deciding a 12(b)(6) motion, a court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). The court must construe the complaint in the light most favorable to the plaintiff, accept all allegations of material fact as true, and draw all reasonable inferences from well-pleaded factual allegations. Gompper v. VISX, Inc., 298 F.3d 893, 896 (9th Cir. 2002); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), amended on denial of reh’g, 275 F.3d 1187 (9th Cir. 2001); Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court is not required to accept as true legal conclusions couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Where a plaintiff facing a 12(b)(6) motion has pled "factual content that allows the court to draw 2 The causes of action asserted against Tiger include the second, third, sixth, and seventh causes of action. See generally FAC. As such, only these causes of action are addressed in the MTD and this Tentative Ruling. 3 the reasonable inference that the defendant is liable for the misconduct alleged," the motion should be denied. Id.; Sylvia Landfield Trust v. City of Los Angeles, 729 F.3d 1189, 1191 (9th Cir. 2013). But if "the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not show[n]... the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (citations omitted). B. Analysis The FAC asserts four causes of action against Tiger, including contributory copyright infringement, vicarious copyright infringement, contributory trademark infringement, and unfair competition. 1. The FAC Fails to State a Claim for Contributory Copyright Infringement Contributory copyright infringement "may be imposed for intentionally encouraging infringement through specific acts." Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1170 (9th Cir. 2007) ("Amazon.com") (citing Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005) ("Grokster")). Thus, "one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a'contributory’ infringer." Id. (quoting Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971)); see also Perfect 10, Inc. v. Visa Intern. Serv. Ass’n, 494 F.3d 788, 795 (9th Cir. 2007) ("Visa") (explaining that contributory infringement can be established through either material contribution or inducement). Tiger does not dispute that it had knowledge of infringing conduct; rather, Tiger contends that Plaintiff has failed to allege that it materially contributed or induced the infringing conduct. a. Material Contribution A third party can only be liable for materially contributing to infringement where its participation in the infringing conduct of the primary infringer is "substantial." See Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F.Supp. 1361, 1375 (9th Cir. 1995) ("Netcom") (citing Gershwin Publ’g, 443 F.3d at 1162; Apple Computer, Inc. v. Microsoft Corp., 821 F.Supp.616, 625 (N.D. Cal. 1993); Demetriades v. Kaufmann, 690 F.Supp. 289, 294 (S.D.N.Y. 1988)). In Amazon.com, the Ninth Circuit analyzed the material contribution prong in the context of an Internet search engine operator and held that: a computer system operator can be held contributorily liable if it 4 "has actual knowledge that specific infringing material is available using its system," and can "take simple measures to prevent further damage" to copyrighted works, yet continues to provide access to infringing works. 508 F.3d at 1172 (quoting A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1022 (9th Cir. 2001); Netcom, 907 F.Supp. 1361, 1375 (N.D. Cal. 1995)). Although an "actor’s contribution to infringement must be material to warrant the imposition of contributory liability," the Ninth Circuit emphasized that "services or products that facilitate access to websites throughout the world can significantly magnify the effects of otherwise immaterial infringing activities." Id. (internal quotations and citations omitted). In Amazon.com, the district court had dismissed a contributory liability claim against Google, a search engine operator, explaining that even assuming Google had knowledge that links to websites displaying infringing material were made available using its search engine, because Google did not undertake promotional or advertising efforts to encourage visits to the infringing websites, it could not be liable for contributory infringement. Id. The Ninth Circuit reversed, explaining that: [t]here is no dispute that Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials. We cannot discount the effect of such a service on copyright owners, even though Google’s assistance is available to all websites, not just infringing ones. Applying our test, Google could be held contributorily liable if it had knowledge that infringing [copies of plaintiff’s] images were available using its search engine, could take simple measures to prevent further damage to [plaintiff’s] copyrighted works, and failed to take such steps. Id. The Ninth Circuit thus remanded to the district court to resolve factual disputes over the adequacy of the plaintiff’s notices to Google of the infringement and Google’s responses to the notices, as well as factual disputes over whether there was a reasonable and feasible means for Google to refrain from providing access to the infringing websites. Id. at 1172-73. Shortly after Amazon.com, the Ninth Circuit issued its decision in Perfect 10, Inc. v. Visa Intern. Serv. Ass’n ("Visa"), 494 F.3d 788 (9th Cir. 2007). In that case, the plaintiff sued various credit card companies for contributory copyright infringement, alleging that the credit card companies had contracted with issuing banks to issue branded credit cards to consumers, and the issuing banks then contracted with merchant banks to settle transactions using those cards, 5 including transactions for payments to Internet websites that infringed the plaintiff’s copyrights. See Visa, 494 F.3d at 792. The plaintiff claimed that the credit card companies had materially contributed to the websites’ infringement because they were aware of the infringement, yet continued to process credit card payments for the infringing websites. Id. at 795. The Ninth Circuit held that the plaintiff had failed to allege facts sufficient to establish material contribution, because the credit card companies: cannot be said to materially contribute to the infringement because they have no direct connection to that infringement. Here, the infringement rests on the reproduction, alteration, display and distribution of [plaintiff’s] images over the Internet. [Plaintiff] has not alleged that any infringing material passes over [d]efendants’ payment networks or through their payment processing systems, or that [d]efendants’ systems are used to alter or display the infringing images.... Here, [] the services provided by the credit card companies do not help locate and are not used to distribute the infringing images. While [plaintiff] has alleged that [d]efendants make it easier for websites to profit from this infringing activity, the issue here is reproduction, alteration, display and distribution, which can occur without payment. Even if infringing images were not paid for, there would still be infringement. Id. at 796. The Court further distinguished Amazon.com, emphasizing that "Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials. Defendants do not provide such a service. They in no way assist or enable Internet users to locate infringing material, and they do not distribute it." Id. at 797. Here, Tiger argues that the FAC fails to allege that Tiger materially contributed to the Publishers’ infringing websites. See MTD at 7:19-14:15. Tiger contends that its operation of an advertising brokerage network does not substantially assist the Publishers’ infringement, because it "does not create, operate, advertise, or otherwise promote the alleged infringing sites," nor does it provide a "site or facility" of infringement. Id. at 12:19-13:9. Rather, Tiger asserts that its business "simply serves ads on [P]ublishers’ sites, and its serving of those ads does nothing to assist consumers in finding the infringing sites or the allegedly infringing works." Id. The Court would agree that the FAC fails to plausibly allege a link between Tiger’s advertising brokerage services and the infringing conduct of the Publishers. The FAC claims that JuicyAds provides "a marketplace for Publishers to increase their revenues by selling ad 6 space to Advertisers"; provides "robust search capabilities on juicyads.com [for Advertisers] to locate and review Publisher sites, including detailed analytics regarding the traffic to each such site;" offers users "various ways to frame searches for Publisher sites, including by categories of content types"; and "displays analytics for each of its Publisher sites including Alexa rankings, daily views and daily clicks." See FAC ¶¶ 41-49. However, although Advertisers are able to locate Publishers’ websites utilizing Tiger’s services, including infringing websites, the FAC fails to allege this contributes to the infringing activity. It is entirely unclear from the FAC how serving an advertisement on a website encourages infringement, other than by enabling the website to profit from those advertisements, a theory the Ninth Circuit expressly rejected in Visa. See Visa, 494 F.3d at 797 (rejecting theory that material contribution was established by the fact that defendants’ services made it easier for websites to profit from infringing activity); cf. Amazon.com, 508 F.3d at 1172 ("Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials).3 As such, the Court would find that Plaintiff has failed to plausibly allege material contribution. See UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1032 (9th Cir. 2013) (affirming dismissal of complaint for failing to allege material contribution where complaint did not allege facts indicating that defendants gave material assistance in helping infringing website or its users accomplish infringement); Elsevier Ltd. v. Chitika, Inc., 826 F.Supp.2d 398, 405 (D. Mass. 2011) (dismissing complaint for failing to allege material contribution against advertising broker that served advertisement on infringing website, reasoning that "while [the broker]’s advertising payments might make it easier for [] infringement to be profitable, [the broker] did not create, operate, advertise, or promote the infringing websites, and its advertisements were not the'site’ of the infringement").4 3 The FAC conclusorily alleges that "Tiger maintains search functions on its website that can assist or enable Internet users to locate infringing material." See id. ¶ 63. However, the FAC provides no facts substantiating this assertion – indeed, there are no allegations that Advertisers use Tiger’s search functions to locate infringing material or to specifically seek out infringing websites. 4 Plaintiff cites to a number of cases that it claims supports its theory that a party may be contributorily liable for providing advertisement services, however, the Court finds that each of these cases is distinguishable and do not support Plaintiff’s theory. First, Plaintiff relies on Gershwin Publishing, in which the Second Circuit held that a music management company could be contributorily liable for promoting concerts at which plaintiff’s musical works were infringed on. See 443 F.2d at 1160-61. However, that case based its holding on the fact that the company had "created the [concerts’] audience as a market for those [infringing] artists... [the company]’s 7 b. Inducement Tiger also argues that the FAC fails to state a claim for inducement liability. See MTD at 14:16-15:14. In Visa, the Ninth Circuit explained that inducement liability can be established where one "‘distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement.’" See Visa, 494 F.3d at 800 (quoting Grokster, 545 U.S. at 936-37). "[T]he standard for inducement liability is providing a service'with the object of promoting its use to infringe copyright’.... inducement'premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.’" Id. (quoting Grokster, 545 U.S. at 937); see also Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1033 (9th Cir. 2013) (explaining that "the inducement copyright doctrine... applies to services available on the Internet as well as to devices or products"). Here, the FAC does not allege that JuicyAds provides its advertising brokerage service for the purpose of promoting copyright infringement, or that it has directly encouraged Publishers to display infringing content on their websites. Cf. Grokster, 545 U.S. at 923-24 (finding file-sharing service liable for infringement where the record was "replete with evidence pervasive participation in the formation and direction of [the concerts] and its programing of compositions presented amply support" a finding of material contribution. Id.at 1163. In contrast, here, there are no allegations establishing that Tiger created the market of users for the infringing websites or pervasively participated in the infringement. Plaintiff also relies on Fonovisa v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996), in which the Ninth Circuit held that a swap meet operator could be contributorily liable for the infringing products of its vendors because the operator provided "space, utilities, parking, advertising, plumbing, and customers," and, most importantly, the provision of the "site and facility for known infringing activity." Id. at 264. The Ninth Circuit emphasized that the swap meet operator "actively strives to provide the environment and the market for counterfeit recording sales to thrive. Its participation in the [infringing] sales cannot be termed'passive.’" Id. In contrast, here, Tiger does not provide the site or facilities for the infringing websites, nor are there any allegations that it actively strives to provide the market for the infringing websites. Nor is Plaintiff’s reliance on Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1170 (C.D. Cal. 2002), persuasive. In that case, material contribution existed because the defendant web-service provider directly paid infringing websites based on the number of users that registered with the web-service provider through the infringing sites, provided technical and content advice to the infringing sites, and attempted to control the quality of the sites to present the websites’ consumers with a unified brand. Id. The FAC by no means alleges such active participation on the part of Tiger. Finally, Plaintiff relies on the decisions in A&M Records v. Napster, 114 F.Supp.2d 896, 906 (N.D. Cal. 2000), aff’d in part, 239 F.3d 1004 (9th Cir. 2001) and Metro-Golden-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). However, both of those cases involved defendant websites that enabled users to locate and download electronic files that infringed on copyrighted works and distribute them through peer-to-peer sharing networks, thereby contributing to infringement of those works. In contrast, here, there are no allegations indicating how Tiger’s services enable infringement. See also the discussion of inducement liability, infra. 8 that from the moment [plaintiffs] began to distribute their free software, each one clearly voiced the objective that recipients use it to download copyrighted works, and each took active steps to encourage infringement").5 As such, the Court would find that Plaintiff has failed to plead contributory liability by inducement. Because Plaintiff has failed to allege contributory copyright infringement, the Court would DISMISS the second cause of action as to Tiger. 2. The FAC Fails to State a Claim for Vicarious Copyright Infringement "To state a claim for vicarious copyright infringement, a plaintiff must allege that the defendant (1) has the right and ability to supervise the infringing conduct and (2) a direct financial interest in the infringing activity." See Visa, 494 F.3d at 802 (citations omitted). Tiger argues that the FAC fails to adequately state a claim for vicarious liability because Tiger does not have the requisite right and ability to supervise and control the infringing conduct. See MTD at 16:2-12. The Court would agree. In Visa, the Ninth Circuit held that the defendants could not be held vicariously liable for infringement by independent websites because they did not have the ability to "take away the software the offending websites use to copy, alter, and distribute the infringing images, cannot remove those websites from the Internet, and cannot themselves block the distribution of those images over the Internet." See Visa, 494 F.3d at 805. Similarly, in Amazon.com, the Ninth Circuit found that there was no vicarious liability because Google did not have the legal right to stop or limit the direct infringement of third-party websites. See Amazon.com, 508 F.3d at 1173. Plaintiff argues that Tiger does have the ability in that it can eject users from its network, thereby decreasing the amount of traffic the infringing websites obtain. See Opp’n at 22:17-22. However, this theory was expressly rejected in both Visa and Amazon.com. See Visa, 494 F.3d at 804-05 (emphasizing that although loss of particular service provider could harm infringing website, that was not sufficient to establish that the providers had the legal right to stop third-party websites from infringing where infringing activity took place on third-party websites); Amazon.com, 487 F.3d at 731 (same). As Tiger correctly points out, the FAC does not allege that Tiger has the legal right to stop the infringing websites. 5 Plaintiff asserts that it "has not yet discovered communications between JuicyAds and its Publishers," but argues that "it is reasonable to assume that discovery would adduce communications between Tiger and Publishers inducing infringement." See Opp’n at 21:9-18. Plaintiff thus requests that the Court defer its decision on Plaintiff’s inducement theory until after discovery. Id. However, the FAC makes no allegations that Tiger promotes infringement. As such, the Court would find that Plaintiff has failed to adequately plead inducement. 9 For the foregoing reasons, the Court would DISMISS the third cause of action for vicarious copyright infringement against Tiger. 3. The FAC Fails to State a Claim for Contributory Trademark Infringement "To be liable for contributory trademark infringement, a defendant must have (1)'intentionally induced’ the primary infringer to infringe, or (2) continued to supply an infringing product to an infringer with knowledge that the infringer is mislabeling the particular product supplied." See Visa, 494 F.3d at 807 (citing Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855 (1982)). "The tests for secondary trademark infringement are even more difficult to satisfy than those required to find secondary copyright infringement." Id. (citing Sony Corp. v. Universal City Studios, 464 U.S. 417, 439 n.19 (1984)). "For liability to attach, there must be'direct control and monitoring of the instrumentality used by a third party to infringe the plaintiff’s mark.’" Id. (citing Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 984 (9th Cir. 1999)). Tiger argues that, with respect to the first prong, Plaintiff has not alleged facts that support a claim that Tiger intentionally induced any Publisher to use and infringe Plaintiff’s trademarks. See MTD at 22:21-3. The Court would agree – the FAC alleges no facts indicating that Tiger intentionally induced trademark infringement by the infringing websites.6 Indeed, the FAC does not even allege facts establishing what the purported trademark infringement entailed. To establish the second prong, a plaintiff must show that the defendant "had direct control and monitoring of the instrumentality used by a third party to infringe." See Lockheed Martin Corp., 194 F.3d at 984. As Tiger contends, the FAC contains no allegations that Tiger controls or monitors the "instrumentality" used by the Publishers to engage in the trademark infringement. In sum, the Court would DISMISS the sixth cause of action for contributory trademark infringement against Tiger. 4. The FAC Fails to State a Claim for Unfair Competition The FAC’s seventh cause of action alleges that the "acts of trademark infringement, direct and secondary, constitute unfair competition under Cal. Bus. & Prof. Code § 17200." See 6 The FAC conclusorily alleges that Defendants "have continued to provide services to the [infringing] sites with actual and constructive knowledge of those sites’ infringement of ALS’s trademark, and are thus liable for inducing and contributing to direct trademark infringement. See FAC ¶ 105 (emphasis added). However, under the Ninth Circuit’s decision in Visa, a plaintiff must establish inducement, rather than material contribution, to establish contributory liability for trademark infringement. 10 FAC ¶ 108. The Ninth Circuit has made clear that this cause of action is "substantially congruent" to a claim under the Lanham Act. See Cleary v. News Corp., 30 F.3d 1255, 1262-63 (9th Cir. 1994). Thus, because Plaintiff’s cause of action for contributory trademark infringement fails, its § 17200 claim necessarily fails. See Japan Telecom, Inc. v. Japan Telecom Am. Inc., 287 F.3d 856, 875 ("[Plaintiff’s] California unfair competition claim fails because its related Lanham Act claims fail."); Denbicare U.S.A. Inc. v. Toys "R" Us, Inc., 84 F.3d 1143, 1152 (9th Cir. 1996) (dismissing § 17200 claim where complaint failed to state a claim for trademark infringement). As such, the Court would DISMISS the seventh cause of action for unfair competition against Tiger. C. Conclusion Because Plaintiff has failed to allege secondary liability against Tiger, the Court would GRANT Tiger’s Motion and DISMISS the FAC as to Tiger. Because Plaintiff may be able to cure the deficiencies in its allegations, the Court would dismiss without prejudice. III. Plaintiff’s Motion for Preliminary Injunction Plaintiff moves for a preliminary injunction against Tiger. See Mot. However, because the Court would dismiss the FAC’s causes of action against Tiger, Plaintiff’s motion for preliminary injunctive relief is MOOT. 11

MINUTES OF CLOUDFLARE, INC.'S MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) {{49}} held before Judge George H. Wu: Court hears oral argument. The Tentative circulated and attached hereto, is adopted as the Court's Final Ruling. Defendant Cloudflare's motion is GRANTED WITH LEAVE TO AMEND. Plaintiff will have until November 11, 2016 to file a Second Amended Complaint. Defendants will have three weeks from November 11 to respond. The scheduling conference remains on calendar for November 28, 2016 at 8:30 a.m. Parties will file a joint Rule 26(f) report by noon on November 21, 2016. Court Reporter: Katie Thibodeaux.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES-GENERAL Case No. CV 16-5051-GW(AFMx) Date October 24, 2016 Title ALS Scan, Inc. v. Cloudflare, Inc., et al. Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE Javier Gonzalez Katie Thibodeaux Deputy Clerk Court Reporter/Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Jay M. Spillane Gary L. Bostwick Rachel H. Kassabian PROCEEDINGS: CLOUDFLARE, INC.’S MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) [49] Court hears oral argument. The Tentative circulated and attached hereto, is adopted as the Court’s Final Ruling. Defendant Cloudflare’s motion is GRANTED WITH LEAVE TO AMEND. Plaintiff will have until November 11, 2016 to file a Second Amended Complaint. Defendants will have three weeks from November 11 to respond. The scheduling conference remains on calendar for November 28, 2016 at 8:30 a.m. Parties will file a joint Rule 26(f) report by noon on November 21, 2016.: 23 Initials of Preparer JG CV-90 (06/04) CIVIL MINUTES-GENERAL Page 1 of 1 ALS Scan, Inc. v. CloudFlare, Inc., et al., Case No. CV-16-5051-GW-AFM Tentative Rulings on: (1) Defendant Tiger Media, Inc.’s Motion to Dismiss, and (2) Plaintiff’s Motion for Preliminary Injunction I. Introduction ALS Scan, Inc. ("Plaintiff") sues CloudFlare, Inc. ("CloudFlare"); Tiger Media, Inc. ("Tiger"); OVH SAS; Hebergement OVH Inc.; Dolphin Media Ltd. ("Dolphin"); Hivelocity Ventures Corporation; Steadfast Networks, LLC; Duodecad IT Services Luxembourg S.A.R.L.; and Does 1-10 (collectively, "Defendants") for various claims related to Defendants’ alleged infringement of Plaintiff’s copyrighted and trademarked works. See generally First Am. Compl. ("FAC"), Docket No. 33. The FAC asserts seven causes of action: (1) direct copyright infringement, against Dolphin and Does 1-5; (2) contributory copyright infringement, against all Defendants except Dolphin; (3) vicarious copyright infringement, against all Defendants except Dolphin; (4) direct trademark infringement, against Dolphin and Does 1-5; (5) direct trademark counterfeiting, against Dolphin and Does 1-5; (6) contributory trademark infringement, against all Defendants except Dolphin; and (7) unfair competition, against all Defendants. Id. Plaintiff owns a library of copyrighted and trademarked works of adult entertainment. Id. ¶ 3. Plaintiff alleges that its works are repeatedly infringed on pirate Internet sites1 that display infringing adult content. Id. ¶ 4. These sites are allegedly supported by third-party service providers that continue doing business with the sites even after receiving actual notice of infringement from Plaintiff. Id. ¶ 6. Plaintiff alleges that the pirate sites monetize Internet traffic through advertisers and "traffic brokers," who pay to receive traffic from pirate sites and also resell traffic to purchasers. Id. According to Plaintiff, Tiger owns or operates an online advertising brokerage business called "JuicyAds," which caters to the adult entertainment industry. Id. ¶ 11. JuicyAds’ Terms of Service explains that it conducts business with both "Publishers" and "Advertisers" – Publishers are owners or operators of websites with adult content who sell advertising space through the JuicyAds service, whereas Advertisers buy advertising space on Publishers’ websites through the JuicyAds service. Id. ¶ 43. 1 Plaintiff includes the names of some of these pirate sites, including imghili.net; namethatpornstar.com; slimpics.com; cumonmy.com; bestofsexpics.com; teenbe.com; mymaturespace.com; spankwiki.net; and stooorage.com. Id. ¶ 5. 1 A Publisher applies for and obtains a user account with JuicyAds through the juicyads.com website, and informs JuicyAds of the websites the Publisher will use to deliver Internet traffic to Advertisers. Id. ¶ 48. The Publisher then receives a PIN it can use to place advertisements served by JuicyAds on the Publisher’s website. Id. Plaintiff alleges that the registration process is automated and does not involve contact with JuicyAds personnel. Id. ¶ 48. Publishers choose the price for their traffic, from which JuicyAds takes a 25% commission. Id. ¶ 50. Advertisers can choose to purchase traffic from either specific Publishers or across the entire range of Publishers. Id. Plaintiff alleges that when a consumer clicks on a JuicyAds advertisement on a Publisher site, the consumer is transported temporarily to the JuicyAds server, and then to the website of the Advertiser. Id. ¶ 51. Plaintiff alleges that JuicyAds reserves sole discretion and ability to suspend or terminate any users’ account at any time. Id. ¶ 46. Moreover, JuicyAds’ Terms of Service prohibits websites that engage in "[d]istribution of any copyrighted materials without permission, or linking to any copyrighted materials." Id. JuicyAds reserves the right to investigate any account and suspend payments and access to the JuicyAds service. Id. In addition, Plaintiff alleges that it is JuicyAds’ policy to remove or block access to material it believes infringes on copyrighted materials; remove or disable access to material claimed to be infringing copyrighted material upon notification to its Designated Agent; and remove and discontinue service to repeat offenders. Id. ¶ 47. Plaintiff alleges that it has sent 195 separate email notifications to JuicyAds with multiple examples of infringing ALS images on certain Publishers’ websites, but JuicyAds refuses to terminate these Publishers’ accounts. Id. ¶ 53. Moreover, Plaintiff claims that it hired an employee to obtain a personal JuicyAds account and submit information to JuicyAds that its website was www.stolenalspictures.com; JuicyAds thereafter provided the employee with information and hyperlinks to place advertisements on that website. Id. ¶ 55. The homepage of the website states that it displays "Infringing ALS Photos Made Free," and describes the website’s process for stealing ALS’s copyrighted images. Id. ¶ 56. However, despite this content, Plaintiff alleges that the website remains a Publisher in the JuicyAds network. Id. ¶57. Through its operation of JuicyAds, Plaintiff alleges that Tiger has materially contributed to the infringing conduct of its Publishers. Id. ¶ 62. Plaintiff seeks actual damages, statutory damages, disgorgement of profits obtained from the infringing activity, trebling of damages, 2 costs and attorneys’ fees, preliminary and permanent injunctive relief, and such other relief as the Court deems appropriate. Id. at 12:20-13:1. Now pending before the Court is Tiger’s Motion to Dismiss the FAC as it relates to Tiger. See Mot. to Dismiss ("MTD"), Docket No. 36. Plaintiff has opposed the Motion, see Opp’n to MTD ("Opp’n"), Docket No. 43, to which Tiger has replied, see Reply, Docket No. 46. Also pending before the Court is Plaintiff’s Motion for a Preliminary Injunction Against Tiger. See Mot. for Prelim. Injunction ("Mot."), Docket No. 9. Tiger has opposed the Motion, see Opp’n to Mot., Docket No. 41, to which Plaintiff has replied, see Reply, Docket No. 44. II. Tiger’s Motion to Dismiss Tiger moves to dismiss the FAC under Rule 12(b)(6), on the grounds that Plaintiff fails to state a claim for secondary liability against Tiger.2 See generally MTD. A. Legal Standard Under Rule 12(b)(6), a defendant may move to dismiss for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A complaint may be dismissed for failure to state a claim for one of two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008) ("Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory."). In deciding a 12(b)(6) motion, a court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). The court must construe the complaint in the light most favorable to the plaintiff, accept all allegations of material fact as true, and draw all reasonable inferences from well-pleaded factual allegations. Gompper v. VISX, Inc., 298 F.3d 893, 896 (9th Cir. 2002); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), amended on denial of reh’g, 275 F.3d 1187 (9th Cir. 2001); Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court is not required to accept as true legal conclusions couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Where a plaintiff facing a 12(b)(6) motion has pled "factual content that allows the court to draw 2 The causes of action asserted against Tiger include the second, third, sixth, and seventh causes of action. See generally FAC. As such, only these causes of action are addressed in the MTD and this Tentative Ruling. 3 the reasonable inference that the defendant is liable for the misconduct alleged," the motion should be denied. Id.; Sylvia Landfield Trust v. City of Los Angeles, 729 F.3d 1189, 1191 (9th Cir. 2013). But if "the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not show[n]... the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (citations omitted). B. Analysis The FAC asserts four causes of action against Tiger, including contributory copyright infringement, vicarious copyright infringement, contributory trademark infringement, and unfair competition. 1. The FAC Fails to State a Claim for Contributory Copyright Infringement Contributory copyright infringement "may be imposed for intentionally encouraging infringement through specific acts." Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1170 (9th Cir. 2007) ("Amazon.com") (citing Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005) ("Grokster")). Thus, "one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a'contributory’ infringer." Id. (quoting Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971)); see also Perfect 10, Inc. v. Visa Intern. Serv. Ass’n, 494 F.3d 788, 795 (9th Cir. 2007) ("Visa") (explaining that contributory infringement can be established through either material contribution or inducement). Tiger does not dispute that it had knowledge of infringing conduct; rather, Tiger contends that Plaintiff has failed to allege that it materially contributed or induced the infringing conduct. a. Material Contribution A third party can only be liable for materially contributing to infringement where its participation in the infringing conduct of the primary infringer is "substantial." See Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F.Supp. 1361, 1375 (9th Cir. 1995) ("Netcom") (citing Gershwin Publ’g, 443 F.3d at 1162; Apple Computer, Inc. v. Microsoft Corp., 821 F.Supp.616, 625 (N.D. Cal. 1993); Demetriades v. Kaufmann, 690 F.Supp. 289, 294 (S.D.N.Y. 1988)). In Amazon.com, the Ninth Circuit analyzed the material contribution prong in the context of an Internet search engine operator and held that: a computer system operator can be held contributorily liable if it 4 "has actual knowledge that specific infringing material is available using its system," and can "take simple measures to prevent further damage" to copyrighted works, yet continues to provide access to infringing works. 508 F.3d at 1172 (quoting A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1022 (9th Cir. 2001); Netcom, 907 F.Supp. 1361, 1375 (N.D. Cal. 1995)). Although an "actor’s contribution to infringement must be material to warrant the imposition of contributory liability," the Ninth Circuit emphasized that "services or products that facilitate access to websites throughout the world can significantly magnify the effects of otherwise immaterial infringing activities." Id. (internal quotations and citations omitted). In Amazon.com, the district court had dismissed a contributory liability claim against Google, a search engine operator, explaining that even assuming Google had knowledge that links to websites displaying infringing material were made available using its search engine, because Google did not undertake promotional or advertising efforts to encourage visits to the infringing websites, it could not be liable for contributory infringement. Id. The Ninth Circuit reversed, explaining that: [t]here is no dispute that Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials. We cannot discount the effect of such a service on copyright owners, even though Google’s assistance is available to all websites, not just infringing ones. Applying our test, Google could be held contributorily liable if it had knowledge that infringing [copies of plaintiff’s] images were available using its search engine, could take simple measures to prevent further damage to [plaintiff’s] copyrighted works, and failed to take such steps. Id. The Ninth Circuit thus remanded to the district court to resolve factual disputes over the adequacy of the plaintiff’s notices to Google of the infringement and Google’s responses to the notices, as well as factual disputes over whether there was a reasonable and feasible means for Google to refrain from providing access to the infringing websites. Id. at 1172-73. Shortly after Amazon.com, the Ninth Circuit issued its decision in Perfect 10, Inc. v. Visa Intern. Serv. Ass’n ("Visa"), 494 F.3d 788 (9th Cir. 2007). In that case, the plaintiff sued various credit card companies for contributory copyright infringement, alleging that the credit card companies had contracted with issuing banks to issue branded credit cards to consumers, and the issuing banks then contracted with merchant banks to settle transactions using those cards, 5 including transactions for payments to Internet websites that infringed the plaintiff’s copyrights. See Visa, 494 F.3d at 792. The plaintiff claimed that the credit card companies had materially contributed to the websites’ infringement because they were aware of the infringement, yet continued to process credit card payments for the infringing websites. Id. at 795. The Ninth Circuit held that the plaintiff had failed to allege facts sufficient to establish material contribution, because the credit card companies: cannot be said to materially contribute to the infringement because they have no direct connection to that infringement. Here, the infringement rests on the reproduction, alteration, display and distribution of [plaintiff’s] images over the Internet. [Plaintiff] has not alleged that any infringing material passes over [d]efendants’ payment networks or through their payment processing systems, or that [d]efendants’ systems are used to alter or display the infringing images.... Here, [] the services provided by the credit card companies do not help locate and are not used to distribute the infringing images. While [plaintiff] has alleged that [d]efendants make it easier for websites to profit from this infringing activity, the issue here is reproduction, alteration, display and distribution, which can occur without payment. Even if infringing images were not paid for, there would still be infringement. Id. at 796. The Court further distinguished Amazon.com, emphasizing that "Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials. Defendants do not provide such a service. They in no way assist or enable Internet users to locate infringing material, and they do not distribute it." Id. at 797. Here, Tiger argues that the FAC fails to allege that Tiger materially contributed to the Publishers’ infringing websites. See MTD at 7:19-14:15. Tiger contends that its operation of an advertising brokerage network does not substantially assist the Publishers’ infringement, because it "does not create, operate, advertise, or otherwise promote the alleged infringing sites," nor does it provide a "site or facility" of infringement. Id. at 12:19-13:9. Rather, Tiger asserts that its business "simply serves ads on [P]ublishers’ sites, and its serving of those ads does nothing to assist consumers in finding the infringing sites or the allegedly infringing works." Id. The Court would agree that the FAC fails to plausibly allege a link between Tiger’s advertising brokerage services and the infringing conduct of the Publishers. The FAC claims that JuicyAds provides "a marketplace for Publishers to increase their revenues by selling ad 6 space to Advertisers"; provides "robust search capabilities on juicyads.com [for Advertisers] to locate and review Publisher sites, including detailed analytics regarding the traffic to each such site;" offers users "various ways to frame searches for Publisher sites, including by categories of content types"; and "displays analytics for each of its Publisher sites including Alexa rankings, daily views and daily clicks." See FAC ¶¶ 41-49. However, although Advertisers are able to locate Publishers’ websites utilizing Tiger’s services, including infringing websites, the FAC fails to allege this contributes to the infringing activity. It is entirely unclear from the FAC how serving an advertisement on a website encourages infringement, other than by enabling the website to profit from those advertisements, a theory the Ninth Circuit expressly rejected in Visa. See Visa, 494 F.3d at 797 (rejecting theory that material contribution was established by the fact that defendants’ services made it easier for websites to profit from infringing activity); cf. Amazon.com, 508 F.3d at 1172 ("Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials).3 As such, the Court would find that Plaintiff has failed to plausibly allege material contribution. See UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1032 (9th Cir. 2013) (affirming dismissal of complaint for failing to allege material contribution where complaint did not allege facts indicating that defendants gave material assistance in helping infringing website or its users accomplish infringement); Elsevier Ltd. v. Chitika, Inc., 826 F.Supp.2d 398, 405 (D. Mass. 2011) (dismissing complaint for failing to allege material contribution against advertising broker that served advertisement on infringing website, reasoning that "while [the broker]’s advertising payments might make it easier for [] infringement to be profitable, [the broker] did not create, operate, advertise, or promote the infringing websites, and its advertisements were not the'site’ of the infringement").4 3 The FAC conclusorily alleges that "Tiger maintains search functions on its website that can assist or enable Internet users to locate infringing material." See id. ¶ 63. However, the FAC provides no facts substantiating this assertion – indeed, there are no allegations that Advertisers use Tiger’s search functions to locate infringing material or to specifically seek out infringing websites. 4 Plaintiff cites to a number of cases that it claims supports its theory that a party may be contributorily liable for providing advertisement services, however, the Court finds that each of these cases is distinguishable and do not support Plaintiff’s theory. First, Plaintiff relies on Gershwin Publishing, in which the Second Circuit held that a music management company could be contributorily liable for promoting concerts at which plaintiff’s musical works were infringed on. See 443 F.2d at 1160-61. However, that case based its holding on the fact that the company had "created the [concerts’] audience as a market for those [infringing] artists... [the company]’s 7 b. Inducement Tiger also argues that the FAC fails to state a claim for inducement liability. See MTD at 14:16-15:14. In Visa, the Ninth Circuit explained that inducement liability can be established where one "‘distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement.’" See Visa, 494 F.3d at 800 (quoting Grokster, 545 U.S. at 936-37). "[T]he standard for inducement liability is providing a service'with the object of promoting its use to infringe copyright’.... inducement'premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.’" Id. (quoting Grokster, 545 U.S. at 937); see also Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1033 (9th Cir. 2013) (explaining that "the inducement copyright doctrine... applies to services available on the Internet as well as to devices or products"). Here, the FAC does not allege that JuicyAds provides its advertising brokerage service for the purpose of promoting copyright infringement, or that it has directly encouraged Publishers to display infringing content on their websites. Cf. Grokster, 545 U.S. at 923-24 (finding file-sharing service liable for infringement where the record was "replete with evidence pervasive participation in the formation and direction of [the concerts] and its programing of compositions presented amply support" a finding of material contribution. Id.at 1163. In contrast, here, there are no allegations establishing that Tiger created the market of users for the infringing websites or pervasively participated in the infringement. Plaintiff also relies on Fonovisa v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996), in which the Ninth Circuit held that a swap meet operator could be contributorily liable for the infringing products of its vendors because the operator provided "space, utilities, parking, advertising, plumbing, and customers," and, most importantly, the provision of the "site and facility for known infringing activity." Id. at 264. The Ninth Circuit emphasized that the swap meet operator "actively strives to provide the environment and the market for counterfeit recording sales to thrive. Its participation in the [infringing] sales cannot be termed'passive.’" Id. In contrast, here, Tiger does not provide the site or facilities for the infringing websites, nor are there any allegations that it actively strives to provide the market for the infringing websites. Nor is Plaintiff’s reliance on Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1170 (C.D. Cal. 2002), persuasive. In that case, material contribution existed because the defendant web-service provider directly paid infringing websites based on the number of users that registered with the web-service provider through the infringing sites, provided technical and content advice to the infringing sites, and attempted to control the quality of the sites to present the websites’ consumers with a unified brand. Id. The FAC by no means alleges such active participation on the part of Tiger. Finally, Plaintiff relies on the decisions in A&M Records v. Napster, 114 F.Supp.2d 896, 906 (N.D. Cal. 2000), aff’d in part, 239 F.3d 1004 (9th Cir. 2001) and Metro-Golden-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). However, both of those cases involved defendant websites that enabled users to locate and download electronic files that infringed on copyrighted works and distribute them through peer-to-peer sharing networks, thereby contributing to infringement of those works. In contrast, here, there are no allegations indicating how Tiger’s services enable infringement. See also the discussion of inducement liability, infra. 8 that from the moment [plaintiffs] began to distribute their free software, each one clearly voiced the objective that recipients use it to download copyrighted works, and each took active steps to encourage infringement").5 As such, the Court would find that Plaintiff has failed to plead contributory liability by inducement. Because Plaintiff has failed to allege contributory copyright infringement, the Court would DISMISS the second cause of action as to Tiger. 2. The FAC Fails to State a Claim for Vicarious Copyright Infringement "To state a claim for vicarious copyright infringement, a plaintiff must allege that the defendant (1) has the right and ability to supervise the infringing conduct and (2) a direct financial interest in the infringing activity." See Visa, 494 F.3d at 802 (citations omitted). Tiger argues that the FAC fails to adequately state a claim for vicarious liability because Tiger does not have the requisite right and ability to supervise and control the infringing conduct. See MTD at 16:2-12. The Court would agree. In Visa, the Ninth Circuit held that the defendants could not be held vicariously liable for infringement by independent websites because they did not have the ability to "take away the software the offending websites use to copy, alter, and distribute the infringing images, cannot remove those websites from the Internet, and cannot themselves block the distribution of those images over the Internet." See Visa, 494 F.3d at 805. Similarly, in Amazon.com, the Ninth Circuit found that there was no vicarious liability because Google did not have the legal right to stop or limit the direct infringement of third-party websites. See Amazon.com, 508 F.3d at 1173. Plaintiff argues that Tiger does have the ability in that it can eject users from its network, thereby decreasing the amount of traffic the infringing websites obtain. See Opp’n at 22:17-22. However, this theory was expressly rejected in both Visa and Amazon.com. See Visa, 494 F.3d at 804-05 (emphasizing that although loss of particular service provider could harm infringing website, that was not sufficient to establish that the providers had the legal right to stop third-party websites from infringing where infringing activity took place on third-party websites); Amazon.com, 487 F.3d at 731 (same). As Tiger correctly points out, the FAC does not allege that Tiger has the legal right to stop the infringing websites. 5 Plaintiff asserts that it "has not yet discovered communications between JuicyAds and its Publishers," but argues that "it is reasonable to assume that discovery would adduce communications between Tiger and Publishers inducing infringement." See Opp’n at 21:9-18. Plaintiff thus requests that the Court defer its decision on Plaintiff’s inducement theory until after discovery. Id. However, the FAC makes no allegations that Tiger promotes infringement. As such, the Court would find that Plaintiff has failed to adequately plead inducement. 9 For the foregoing reasons, the Court would DISMISS the third cause of action for vicarious copyright infringement against Tiger. 3. The FAC Fails to State a Claim for Contributory Trademark Infringement "To be liable for contributory trademark infringement, a defendant must have (1)'intentionally induced’ the primary infringer to infringe, or (2) continued to supply an infringing product to an infringer with knowledge that the infringer is mislabeling the particular product supplied." See Visa, 494 F.3d at 807 (citing Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855 (1982)). "The tests for secondary trademark infringement are even more difficult to satisfy than those required to find secondary copyright infringement." Id. (citing Sony Corp. v. Universal City Studios, 464 U.S. 417, 439 n.19 (1984)). "For liability to attach, there must be'direct control and monitoring of the instrumentality used by a third party to infringe the plaintiff’s mark.’" Id. (citing Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 984 (9th Cir. 1999)). Tiger argues that, with respect to the first prong, Plaintiff has not alleged facts that support a claim that Tiger intentionally induced any Publisher to use and infringe Plaintiff’s trademarks. See MTD at 22:21-3. The Court would agree – the FAC alleges no facts indicating that Tiger intentionally induced trademark infringement by the infringing websites.6 Indeed, the FAC does not even allege facts establishing what the purported trademark infringement entailed. To establish the second prong, a plaintiff must show that the defendant "had direct control and monitoring of the instrumentality used by a third party to infringe." See Lockheed Martin Corp., 194 F.3d at 984. As Tiger contends, the FAC contains no allegations that Tiger controls or monitors the "instrumentality" used by the Publishers to engage in the trademark infringement. In sum, the Court would DISMISS the sixth cause of action for contributory trademark infringement against Tiger. 4. The FAC Fails to State a Claim for Unfair Competition The FAC’s seventh cause of action alleges that the "acts of trademark infringement, direct and secondary, constitute unfair competition under Cal. Bus. & Prof. Code § 17200." See 6 The FAC conclusorily alleges that Defendants "have continued to provide services to the [infringing] sites with actual and constructive knowledge of those sites’ infringement of ALS’s trademark, and are thus liable for inducing and contributing to direct trademark infringement. See FAC ¶ 105 (emphasis added). However, under the Ninth Circuit’s decision in Visa, a plaintiff must establish inducement, rather than material contribution, to establish contributory liability for trademark infringement. 10 FAC ¶ 108. The Ninth Circuit has made clear that this cause of action is "substantially congruent" to a claim under the Lanham Act. See Cleary v. News Corp., 30 F.3d 1255, 1262-63 (9th Cir. 1994). Thus, because Plaintiff’s cause of action for contributory trademark infringement fails, its § 17200 claim necessarily fails. See Japan Telecom, Inc. v. Japan Telecom Am. Inc., 287 F.3d 856, 875 ("[Plaintiff’s] California unfair competition claim fails because its related Lanham Act claims fail."); Denbicare U.S.A. Inc. v. Toys "R" Us, Inc., 84 F.3d 1143, 1152 (9th Cir. 1996) (dismissing § 17200 claim where complaint failed to state a claim for trademark infringement). As such, the Court would DISMISS the seventh cause of action for unfair competition against Tiger. C. Conclusion Because Plaintiff has failed to allege secondary liability against Tiger, the Court would GRANT Tiger’s Motion and DISMISS the FAC as to Tiger. Because Plaintiff may be able to cure the deficiencies in its allegations, the Court would dismiss without prejudice. III. Plaintiff’s Motion for Preliminary Injunction Plaintiff moves for a preliminary injunction against Tiger. See Mot. However, because the Court would dismiss the FAC’s causes of action against Tiger, Plaintiff’s motion for preliminary injunctive relief is MOOT. 11

AMENDED MINUTES held before Judge George H. Wu re: {{59}}. CORRECT RULING ATTACHED.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA **AMENDED** CIVIL MINUTES-GENERAL Case No. CV 16-5051-GW(AFMx) Date October 24, 2016 Title ALS Scan, Inc. v. Cloudflare, Inc., et al. Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE Javier Gonzalez Katie Thibodeaux Deputy Clerk Court Reporter/Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Jay M. Spillane Gary L. Bostwick Rachel H. Kassabian PROCEEDINGS: CLOUDFLARE, INC.’S MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) [49] Court hears oral argument. The Tentative circulated and attached hereto, is adopted as the Court’s Final Ruling. Defendant Cloudflare’s motion is GRANTED WITH LEAVE TO AMEND. Plaintiff will have until November 11, 2016 to file a Second Amended Complaint. Defendants will have three weeks from November 11 to respond. The scheduling conference remains on calendar for November 28, 2016 at 8:30 a.m. Parties will file a joint Rule 26(f) report by noon on November 21, 2016.: 23 Initials of Preparer JG CV-90 (06/04) CIVIL MINUTES-GENERAL Page 1 of 1 ALS Scan, Inc. v. CloudFlare, Inc., et al., Case No. CV-16-5051-GW-AFM Tentative Ruling on Defendant CloudFlare, Inc.’s Motion to Dismiss I. Background ALS Scan, Inc. ("Plaintiff") sues CloudFlare, Inc. ("CloudFlare"); Tiger Media, Inc. ("Tiger"); OVH SAS; Hebergement OVH Inc.; Dolphin Media Ltd. ("Dolphin"); Hivelocity Ventures Corporation; Steadfast Networks, LLC; Duodecad IT Services Luxembourg S.A.R.L.; and Does 1-10 (collectively, "Defendants") for various claims related to Defendants’ alleged infringement of Plaintiff’s copyrighted and trademarked works. See generally First Am. Compl. ("FAC"), Docket No. 33. The FAC asserts seven causes of action: (1) direct copyright infringement, against Dolphin and Does 1-5; (2) contributory copyright infringement, against all Defendants except Dolphin; (3) vicarious copyright infringement, against all Defendants except Dolphin; (4) direct trademark infringement, against Dolphin and Does 1-5; (5) direct trademark counterfeiting, against Dolphin and Does 1-5; (6) contributory trademark infringement, against all Defendants except Dolphin; and (7) unfair competition, against all Defendants. Id. Plaintiff owns a library of copyrighted and trademarked works of adult entertainment. Id. ¶ 3. Plaintiff alleges that its works are repeatedly infringed by pirate Internet sites, which display Plaintiff’s works without Plaintiff’s permission. Id. ¶ 4. These sites are allegedly supported by third-party service providers that continue doing business with the sites even after receiving actual notice of infringement from Plaintiff. Id. ¶ 6. CloudFlare is a web performance and security company that offers a content delivery network ("CDN"), web content optimization, website security, denial of service (DDos) protection, and a managed domain name system network ("DNS"). Id. ¶ 29; see also Decl. of Jay Spillane ("Spillane Decl.") Exs. B-F, Docket No. 52-2 to 52-6.1 CloudFlare’s website advertises that its CDN caches2 clients’ "content across [CloudFlare’s] global network, bringing it closer to visitors from every region." Id. Ex. B, Docket No. 52-2 at page 2. In addition, CloudFlare’s website explains that it "empowers web businesses to deliver fast, secure, and device specific content to enhance the experience of mobile users.... A content delivery 1 As discussed infra, the Court may take judicial notice of these exhibits as documents incorporated in the FAC. 2 "Generally, a'cache’ is a'computer memory with very short access time used for storage of frequently or recently used instructions or data.’" Perfect 10, Inc. v. Amazon.com, Inc. 508 F.3d 1146, 1156 n.3 (9th Cir. 2007) (quoting United States v. Ziegler, 474 F.3d 1184, 1186 n.3 (9th Cir. 2007)). 1 network (CDN) takes [clients’] static content and stores a copy closer to [clients’] visitors. By moving the content closer to [a client’s] actual visitor, it takes less time to access the resources, which means the page loads faster." Id. Ex. C, Docket No. 52-3 at page 7. CloudFlare’s Terms of Service are published on its website and explain to its clients, in relevant part, the following: You retain full copyrights in any materials served through CloudFlare. Depending on the features you select or Apps you enable, CloudFlare may modify the content of your site. For example, CloudFlare may detect any email addresses and replace them with a script in order to keep it from being harvested, or CloudFlare may insert code to improve page load performance or enable a Third Party App. Depending on the features you enable, you acknowledge CloudFlare may: 1. Intercept requests determined to be threats and present them with a challenge page. 2. Add cookies to your domain to track visitors, such as those who have successfully passed the CAPTCHA on a challenge page. 3. Add script to your pages to, for example, add services, Apps, or perform additional performance tracking. 4. Other changes to increase performance or security of your website. CloudFlare will make it clear whenever a feature will modify your content and, whenever possible, provide you a mechanism to allow you to disable the feature. As a visitor to CloudFlare.com and a user of the CloudFlare Service, you consent to having your Internet Protocol address recorded and your activities monitored to prevent abuse.... CloudFlare reserves the right to investigate you, your business, and/or your owners, officers, directors, managers, and other principals, your sites, and the materials comprising the sites at any time. These investigations will be conducted solely for CloudFlare’s benefit, and not for your benefit or that of any third party. If the investigation reveals any information, act, or omission, which in CloudFlare’s sole opinion constitutes a violation of any local, state, federal, or foreign law or regulation, this Agreement, or is otherwise deemed to harm the Service, CloudFlare may immediately shut down your access to the Service.... You acknowledge that CloudFlare may, at its own discretion, reveal the information about your web server to alleged copyright holders or other complainants who have filed complaints with us.... CloudFlare’s policy is to investigate violations of these Terms of 2 Service and terminate repeat infringers.... In order to improve network performance, CloudFlare automatically removes content from our caches when it has been removed from our customer’s origin web server. CloudFlare is not a hosting provider and has no way of removing abusive content on third party hosting services. Individuals or copyright holders concerned with content served through CloudFlare’s network may submit a complaint for investigation.... Id. Ex. D, Docket No. 52-4 at pages 4-9. The FAC alleges that the purpose of CloudFlare’s CDN is a to "speed a customer’s access to the website of Cloudflare’s client through a series of data centers maintained by Cloudflare that cache mirror copies of that site." FAC ¶ 32. According to Plaintiff, this service allows consumers seeking to access a website of CloudFlare’s client to retrieve the website from the closest CloudFlare data center, rather than accessing the site from the primary host. Id. This purportedly results in a client’s website loading twice as fast for its visitors, regardless of where they are located. Id. In addition, Plaintiff alleges that CloudFlare’s DNS service "allow[s] pirate sites and their hosts to conceal their identity from copyright owners. The domain registration information for some of the pirate sites... indicate that the sites reside on a Cloudflare server in Phoenix, Arizona. When presented with a notice of infringement, however, CloudFlare... refuses to disclose the identity of the primary host and site owner. In this fashion Cloudflare acts as a firewall protecting pirate sites and their hosts from legal recourse by copyright owners." Id. ¶ 33. Plaintiff alleges that it sent numerous notices to CloudFlare of infringement of its copyrighted works by CloudFlare clients. Id. ¶ 34. However, Plaintiff alleges that CloudFlare has continued to offer its CDN and related services to these clients, despite the infringement notifications. Id. ¶ 36. Plaintiff seeks actual damages, statutory damages, disgorgement of profits obtained from the infringing activity, trebling of damages, costs and attorneys’ fees, preliminary and permanent injunctive relief, and such other relief as the Court deems appropriate. Id. at 12:20-13:1. Now pending before the Court is CloudFlare’s Motion to Dismiss.3 See Mot. to Dismiss (""MTD"), Docket No. 49, 50. Plaintiff has opposed the Motion, see Opp’n to MTD ("Opp’n"), 3 On October 3, 2016, the Court granted Defendant Tiger’s Motion to Dismiss on the grounds that Plaintiff had failed to make out a claim for secondary liability against Tiger. See Final Ruling, Docket No. 53. 3 Docket No. 51, to which CloudFlare has replied. See Reply, Docket No. 55. II. Legal Standard Under Rule 12(b)(6), a defendant may move to dismiss for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A complaint may be dismissed for failure to state a claim for one of two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008) ("Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory."). In deciding a 12(b)(6) motion, a court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). The court must construe the complaint in the light most favorable to the plaintiff, accept all allegations of material fact as true, and draw all reasonable inferences from well-pleaded factual allegations. Gompper v. VISX, Inc., 298 F.3d 893, 896 (9th Cir. 2002); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), amended on denial of reh’g, 275 F.3d 1187 (9th Cir. 2001); Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court is not required to accept as true legal conclusions couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Where a plaintiff facing a 12(b)(6) motion has pled "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged," the motion should be denied. Id.; Sylvia Landfield Trust v. City of Los Angeles, 729 F.3d 1189, 1191 (9th Cir. 2013). But if "the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not show[n]... the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (citations omitted). III. Analysis4 4 Plaintiff has filed a Declaration with its Opposition arguing that CloudFlare failed to properly meet and confer prior to filing the instant Motion, because the parties did not complete their meet and confer conversations until the evening of September 20, which was only six days prior to the date CloudFlare filed the Motion. See Spillane Decl. Although Local Rule 7-3 requires that the parties meet and confer at least seven days prior to filing a motion, see C.D. Cal. L.R. 7-3, Plaintiff states that CloudFlare’s counsel emailed him on September 18 requesting to meet and confer on September 19, but Plaintiff was not available; as such, the parties did not meet and confer until September 20. Id. ¶ 2. In light of these circumstances, the Court believes the parties substantially complied with Local Rule 7-3. The Spillane Declaration also attaches five exhibits containing various screenshots from CloudFlare’s website, although the Declaration does not clarify the basis for including these exhibits. See id. Exs. B-F. However, 4 The FAC asserts four causes of action against CloudFlare, including contributory copyright infringement, vicarious copyright infringement, contributory trademark infringement, and unfair competition. See generally FAC. CloudFlare alleges that Plaintiff has failed to adequately plead each cause of action. A. The FAC States a Claim for Contributory Copyright Infringement Contributory copyright infringement "may be imposed for intentionally encouraging infringement through specific acts." Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1170 (9th Cir. 2007) ("Amazon.com") (citing Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005) ("Grokster")). Thus, "one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a'contributory’ infringer." Id. (quoting Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971)); see also Perfect 10, Inc. v. Visa Intern. Serv. Ass’n, 494 F.3d 788, 795 (9th Cir. 2007) ("Visa") (explaining that contributory infringement can be established through either material contribution or inducement). CloudFlare does not dispute that it had knowledge of the infringing activity of its clients; rather, Cloudflare contends that Plaintiff has failed to allege that it materially contributed or induced the infringing activity. 1. Material Contribution A third party can only be liable for materially contributing to infringement where its participation in the infringing conduct of the primary infringer is "substantial." See Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F.Supp. 1361, 1375 (9th Cir. 1995) ("Netcom") (citing Gershwin Publ’g, 443 F.3d at 1162; Apple Computer, Inc. v. Microsoft Corp., 821 F.Supp. 616, 625 (N.D. Cal. 1993); Demetriades v. Kaufmann, 690 F.Supp. 289, 294 (S.D.N.Y. 1988)). In Amazon.com, the Ninth Circuit analyzed the material contribution prong in the context of an Internet search engine operator (Google) and held that: a computer system operator can be held contributorily liable if it "has actual knowledge that specific infringing material is available in its Reply, CloudFlare asserts that the Court should take judicial notice of these exhibits, because the FAC refers to and quotes various portions of the website, thereby incorporating the contents of the website into the FAC. See Reply at 2 n.2. The Court agrees. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) ("Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff’s claim."). 5 using its system," and can "take simple measures to prevent further damage" to copyrighted works, yet continues to provide access to infringing works. 508 F.3d at 1172 (quoting A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1022 (9th Cir. 2001); Netcom, 907 F.Supp. at 1375 (emphasis in original). Although an "actor’s contribution to infringement must be material to warrant the imposition of contributory liability," the Ninth Circuit emphasized that "services or products that facilitate access to [infringing] websites throughout the world can significantly magnify the effects of otherwise immaterial infringing activities." Id. (internal quotations and citations omitted). In Amazon.com, the district court had dismissed a contributory copyright infringement claim against Google, holding that even assuming Google had knowledge that links to websites displaying infringing material were made available using its search engine, because Google did not undertake promotional or advertising efforts to encourage visits to the infringing websites, it could not be liable for contributory infringement. Id. The Ninth Circuit reversed, reasoning that: [t]here is no dispute that Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials. We cannot discount the effect of such a service on copyright owners, even though Google’s assistance is available to all websites, not just infringing ones. Applying our test, Google could be held contributorily liable if it had knowledge that infringing [copies of plaintiff’s] images were available using its search engine, could take simple measures to prevent further damage to [plaintiff’s] copyrighted works, and failed to take such steps. Id. The Ninth Circuit thereafter remanded the case to the district court to resolve factual disputes over the adequacy of the plaintiff’s notices to Google of the infringement and Google’s responses to the notices, as well as factual disputes over whether there was a reasonable and feasible means for Google to refrain from providing access to the infringing websites. Id. at 1172-73. Shortly after Amazon.com, the Ninth Circuit issued its decision in Perfect 10, Inc. v. Visa Intern. Serv. Ass’n ("Visa"), 494 F.3d 788 (9th Cir. 2007). In that case, the plaintiff sued various credit card companies for contributory copyright infringement, alleging that the credit card companies had contracted with issuing banks to issue branded credit cards to consumers, and the issuing banks then contracted with merchant banks to settle transactions using those cards, including transactions for payments to Internet websites that infringed the plaintiff’s copyrights. 6 See Visa, 494 F.3d at 792. The plaintiff claimed that the credit card companies had materially contributed to the websites’ infringement because they were aware of the infringement, yet continued to process credit card payments for the infringing websites. Id. at 795. The Ninth Circuit held that the plaintiff had failed to allege facts sufficient to establish material contribution, because the credit card companies: cannot be said to materially contribute to the infringement because they have no direct connection to that infringement. Here, the infringement rests on the reproduction, alteration, display and distribution of [plaintiff’s] images over the Internet. [Plaintiff] has not alleged that any infringing material passes over [d]efendants’ payment networks or through their payment processing systems, or that [d]efendants’ systems are used to alter or display the infringing images.... Here, [] the services provided by the credit card companies do not help locate and are not used to distribute the infringing images. While [plaintiff] has alleged that [d]efendants make it easier for websites to profit from this infringing activity, the issue here is reproduction, alteration, display and distribution, which can occur without payment. Even if infringing images were not paid for, there would still be infringement. Id. at 796. The Circuit further distinguished Amazon.com, emphasizing that "Google may materially contribute to infringement by making it fast and easy for third parties to locate and distribute infringing material, whereas [d]efendants make it easier for infringement to be profitable," which the Court emphasized could not be the basis of contributory copyright liability. Id. at 797 (emphasis in original). Here, the Court would find that Plaintiff has sufficiently alleged contributory liability against CloudFlare pursuant to a material contribution theory. Unlike the credit card companies in Visa, which did not help consumers access infringing websites, Plaintiff alleges that CloudFlare’s CDN service makes it faster and easier – specifically, "twice as fast" – for consumers across the world to access infringing websites and load infringing images from any location. See FAC ¶ 32. Moreover, Plaintiff alleges that consumers seeking access to infringing websites retrieve the website and load the infringing images from the closest CloudFlare data center, rather than from the primary host. Id. These allegations are sufficient to state a claim for material contribution under Ninth Circuit precedent. See Amazon.com, 508 F.3d at 1172 (emphasizing that "services or products that facilitate access to [infringing] websites across the world can significantly magnify the effects of otherwise immaterial infringing activities"); see also Louis Vuitton Malletier, S.A. v. Akonic Solutions, Inc., 658 F.3d 936, 943 (9th Cir. 2011) 7 ("[t]here is no question that providing direct infringers with server space" satisfies the material contribution standard); Ellison v. Robertson, 357 F.3d 1072, 1078 (9th Cir. 2004) (finding triable issue of fact where "reasonable trier of fact could conclude that [internet service provider] materially contributed to the copyright infringement by storing infringing copies of [the infringing] works on its [network] and providing [] users with access to those copies"); Napster, 239 F.3d at 1022 (emphasizing that "without the support services defendant provides, [] users could not find and download the music they want with the ease [provided by defendants]" (internal quotations and citations omitted)); Netcom, 907 F.Supp. at 1375 (finding internet service provider liable for contributory infringement because the provider "allows [the primary infringer’s] infringing messages to remain on its system and be further distributed to other [users] worldwide.... Thus, it is fair, assuming [the provider] is able to take simple measures to prevent further damages to plaintiffs’ copyrighted works, to hold [the provider] liable for contributory infringement where [it] has knowledge of [the] infringing postings yet continues to aid in the accomplishment of [the infringing activity].").5 In addition, with respect to CloudFlare’s DNS service, Plaintiff alleges that CloudFlare "allow[]s pirate sites and their hosts to conceal their identify from copyright owners," thereby preventing copyright holders from stopping the pirate sites’ infringing activities. Id. ¶ 33. These allegations also support a material contribution claim. See Amazon.com, 508 F.3d at 1172 ("copyright holders cannot protect their rights in a meaningful way unless they can hold providers of [internet] services or products accountable"); Napster, 239 F.3d at 929-30 ("When a widely shared service or product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers."). CloudFlare contends that it cannot be liable for material contribution because there are no "simple measures" CloudFlare could take to prevent further damage to Plaintiff’s copyrighted works. See Mot. at 7:7-17. CloudFlare argues that "there are no measures of any kind that 5 CloudFlare attempts to distinguish these cases by contending that in each case, "the services were necessary for the alleged infringement." See Reply at 4:15-18 (emphasis in original). CloudFlare argues that in contrast, here, the infringing activity would continue to exist without CloudFlare’s services. Id. at 5:1-3. However, this argument is misplaced. In Amazon.com, the infringing websites would clearly have continued to exist even without Google’s services – indeed, the Ninth Circuit held that Google’s services made it "faster and easier" for users to access infringing images, thereby making it liable for material contribution, but at the same time found that Google could not be liable for vicarious liability, because the infringing websites would continue to exist "and distribute [their] infringing copies of [plaintiff’s] images after its participation in [Google’s services] has ended." See 508 F.3d at 1172-74. 8 CloudFlare could take to prevent this alleged infringement, because the termination of CloudFlare’s CDN services would have no impact on the existence and ability of these allegedly infringing websites to continue to operate." Id. (emphasis in original). However, a defendant may still be liable for material contribution regardless of whether it is able to completely halt infringing activity, so long as it is able to take measures to "prevent further damage" to the copyrighted works. See Amazon.com, 508 F.3d at 1172. Here, terminating CloudFlare’s services would likely have at least have some impact on the infringing activity of CloudFlare’s clients, in that it would take users twice as long to access and load the infringing images. See Napster, 239 F.3d at 1021-22 (holding defendant liable for material contribution where it could have blocked access to its system by the suppliers of infringing music files, thereby making it more difficult for users to find and download infringing files). In any event, the extent to which reasonable measures exist for CloudFlare to prevent further damage to Plaintiff’s copyrighted works appears to be a factual issue to be resolved at a later stage in these proceedings. See Amazon.com, 508 F.3d at 1172-73 (remanding to district court to resolve "factual disputes over whether there are reasonable and feasible means for Google to refrain from providing access to infringing images"). In sum, because Plaintiff has alleged that CloudFlare’s services facilitate access to its clients’ infringing websites, the Court would find that Plaintiff has sufficiently alleged material contribution.6 2. Inducement CloudFlare also argues that the FAC fails to state a claim for inducement liability, because there are no allegations that CloudFlare’s services encourage the infringing activity. See MTD at 6:25-7:6; 8:6-20. In Visa, the Ninth Circuit explained that inducement liability is established where a defendant "‘distributes a device with the object of promoting its use to 6 The Court notes that the allegations Plaintiff raises with respect to CloudFlare are significantly different than those it raised with respect to Tiger. See Final Ruling at 6-7, Docket No. 53. In its Final Ruling on Tiger’s Motion to Dismiss, the Court held that Plaintiff had failed to "plausibly allege a link between Tiger’s advertising brokerage services and the infringing conduct of the [pirate sites]." Id. at 6. The Court emphasized that it was "entirely unclear from the FAC how serving an advertisement on a website encourages infringement, other than by enabling the website to profit from those advertisements, a theory the Ninth Circuit expressly rejected in Visa." Id. at 7. Here, in contrast, the FAC alleges a direct link between CloudFlare’s services and the infringing conduct of the pirate websites – just as in Amazon.com, in which the Ninth Circuit held that Google could be liable for material contribution because its services made it faster and easier for consumers to access infringing websites, here, the FAC alleges that CloudFlare’s services makes it faster and easier for consumers to access infringing websites and load infringing images. See FAC ¶ 32. 9 infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement.’" See Visa, 494 F.3d at 800 (quoting Grokster, 545 U.S. at 936-37). "[T]he standard for inducement liability is providing a service'with the object of promoting its use to infringe copyright’... inducement'premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.’" Id. (quoting Grokster, 545 U.S. at 937); see also Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1033 (9th Cir. 2013) (explaining that "the inducement copyright doctrine... applies to services available on the Internet as well as to devices or products"). Here, the FAC does not allege that CloudFlare provides its services for the purpose of promoting copyright infringement, or that it directly encourages its clients to display infringing content on their websites. Cf. Grokster, 545 U.S. at 923-24 (finding file-sharing service liable for infringement where the record was "replete with evidence that from the moment [plaintiffs] began to distribute their free software, each one clearly voiced the objective that recipients use it to download copyrighted works, and each took active steps to encourage infringement"). As such, the Court would find that Plaintiff has failed to plead contributory liability pursuant to an inducement theory. 3. Direct Infringement Alternatively, CloudFlare argues that Plaintiff has failed to plausibly allege direct copyright infringement, which is necessary in order to prove contributory infringement. See, e.g., Amazon.com., 508 F.3d at 1169 ("Secondary liability for copyright infringement does not exist in the absence of direct infringement by a third party." (Internal quotation and citation omitted.)). "Plaintiffs must satisfy two requirements to present a prima facie case of direct infringement: (1) they must show ownership of the allegedly infringed material and (2) they must demonstrate that the alleged infringers violate at least one of the exclusive rights granted to copyright holders under 17 U.S.C. § 107." Napster, 239 F.3d at 1013. Here, Plaintiff alleges that it owns the copyrights to numerous works of adult entertainment, and has attached a list of its registrations. See FAC ¶ 3, Ex. 1, Docket No. 33-1. Plaintiff further alleges that various pirate Internet websites have infringed these works by displaying the works on their websites. Id. ¶ 4. Moreover, Plaintiff alleges that the infringing 10 activity has been occurring since around 2000 to the present. Id. ¶ 24. CloudFlare appears to take issue with the fact that Plaintiff has not indicated which specific copyrights were allegedly infringed, and contends that "it is insufficient to attach to the complaint a list of every copyright registration a plaintiff may own, as [Plaintiff] has done here." See MTD at 12:5-14. In support, Plaintiff relies on Palmer Kane LLC v. Scholastic Corp., No. 12 CV 3890, 013 WL 709276, *3 (S.D.N.Y. Feb. 27, 2013). However, in that case, the plaintiff had provided a spreadsheet listing its copyrighted works and registration numbers, but had also alleged that its copyright claims were not limited to the works on the spreadsheet. The Court held that because the plaintiff had indicated that the provided list was not exhaustive, the complaint failed to specify which works were at issue, and explained that "[w]hile the complaint need not specify which copyright is infringed by which act, the complaint needs to contain some factual allegations to narrow the infringing acts beyond broad conclusory statements." See Palmer Kane, 2013 WL 709276, at *3 (citing Richard Feiner & Co., Inc. v. Larry Harmon Pictures Corp., 38 F.Supp.2d 276, 279 (S.D.N.Y. 1999)). In contrast, here, Plaintiff has not alleged that the list of copyright registrations is not exhaustive. Because Plaintiff has sufficiently alleged ownership and violation of its display right, the Court would find that the FAC states a claim for direct copyright infringement against the pirate sites. See 17 U.S.C. § 106(5) (a copyright owner has the exclusive right to "display the copyrighted work publicly"). 4. Conclusion In sum, Plaintiff has sufficiently alleged a material contribution theory of contributory liability. The Court would therefore DENY CloudFlare’s Motion with respect to the second cause of action. B. The FAC Fails to State a Claim for Vicarious Copyright Infringement "To state a claim for vicarious copyright infringement, a plaintiff must allege that the defendant (1) has the right and ability to supervise the infringing conduct and (2) a direct financial interest in the infringing activity." See Visa, 494 F.3d at 802 (citations omitted). CloudFlare argues that the FAC fails to adequately state a claim for vicarious liability because CloudFlare does not have the requisite right and ability to supervise and control the infringing conduct. See MTD at 10:1-11:6. The Court would agree. In Visa, the Ninth Circuit held that the defendants could not be held vicariously liable for infringement by independent 11 websites because they did not have the ability to "take away the software the offending websites use to copy, alter, and distribute the infringing images, cannot remove those websites from the Internet, and cannot themselves block the distribution of those images over the Internet." See Visa, 494 F.3d at 805. Similarly, in Amazon.com, the Ninth Circuit found that there was no vicarious liability because Google did not have the legal right to stop or limit the direct infringement of third-party websites. See Amazon.com, 508 F.3d at 1173. Plaintiff argues that CloudFlare can eliminate copies of the infringing works that it caches at its 86 remote locations, thereby ending distribution of the infringing works from its server system. See Opp’n at 16:10-20. However, this theory was expressly rejected in both Visa and Amazon.com. See Visa, 494 F.3d at 804-05 (emphasizing that although loss of particular service provider could harm infringing website, that was not sufficient to establish that the providers had the legal right to stop third-party websites from infringing where infringing activity took place on third-party websites); Amazon.com, 487 F.3d at 731 (same). As CloudFlare correctly points out, the FAC does not allege that CloudFlare has the legal right to stop the infringing websites. Moreover, the FAC does not allege that CloudFlare has a direct financial interest in the infringing activity. As the Ninth Circuit has explained, "[t]he essential aspect of the'direct financial benefit’ inquiry is whether there is a causal relationship between the infringing activity and any financial benefit a defendant reaps." See Ellison, 357 F.3d at 1079. In Ellison, the Ninth Circuit held that there was a direct financial benefit because the infringing activity helped to encourage overall subscription to the internet service provider. Id. Here, the FAC does not allege that the infringing activity encourages customers to subscribe to CloudFlare’s services or somehow directly creates a financial profit for CloudFlare. As such, the Court would find that the FAC fails to state a claim for vicarious copyright liability and dismiss the third cause of action against CloudFlare. C. The FAC Fails to State a Claim for Contributory Trademark Infringement CloudFlare also contends that the FAC fails to state a claim for contributory trademark infringement, because the FAC fails to allege an action for direct trademark infringement, and also fails to allege any facts establishing contributory liability on the part of CloudFlare. See MTD at 13:3. 12 1. Direct Infringement Plaintiff’s fourth cause of action is for "direct trademark infringement," which requires a "trademark holder [to] show that the defendant’s use of its trademark'is likely to cause confusion, or to cause mistake, or to deceive.’" See Adobe Sys., Inc. v. Christenson, 809 F.3d 1071, 1081 (9th Cir. 2015) (quoting Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1030 (9th Cir. 2010)). CloudFlare contends that Plaintiff’s trademark infringement claim is based on the same underlying conduct as its copyright claims, and thus is indivisible from its copyright claim. See MTD at 13:6-15:15. In support, CloudFlare relies on Dastar Corp. v. Twentieth Century Fox Film, Corp., 539 U.S. 23, 33-34 (2003), in which the Supreme Court held that a trademark claim cannot be relied upon to extend copyright rights to an expired copyright registration. However, in Dastar, the plaintiffs brought a trademark claim alleging that the defendant’s television series failed to give proper credit to the plaintiffs’ earlier television series based on the same general plot – the copyright to the plaintiffs’ television series had expired and the television series was in the public domain. See Dastar, 539 U.S. at 26. The Court held that the plaintiffs’ trademark claim was essentially a copyright claim and therefore preempted, emphasizing that the distinguishing factor between copyright and trademark is that trademark protects only the "producer of the tangible goods that are offered for sale, and not [] the author of any idea, concept, or communication embodied in those works." Id. at 37. The Court concluded that the defendant was the producer of the television show, and therefore, the plaintiffs could not prevail on their trademark infringement claim. Id. Here, Plaintiff has properly alleged that it is both the producer of the images at issue and the author of the ideas embodied in those images, and thus has alleged separate claims for both copyright infringement and trademark infringement. Plaintiff’s copyright claim rests on its allegations that it is the owner of the original idea and expression embodied in its adult works, while its trademark claim rests on its allegations that the infringing images are displayed with Plaintiff’s trademark on them, thereby creating confusion as to origin. See Lions Gate Entm’t Inc. v. TD Ameritrade Servs. Co., Inc., __ F.Supp.3d __, 2016 WL 1027988, *13 (C.D. Cal. Mar. 14, 2016), on reconsideration for other grounds, (emphasizing that "if the [] defendants were to sell posters, journals, and clothing with [the trademarked phrase] on them, or take the goods [plaintiff] alleges it produces or licenses and put [defendant’s] own mark on it, then there would 13 be a solid origin claim under the Lanham Act"); see also Tristar Pictures, Inc. v. Del Taco, Inc., No. CV 99-07655DDPEX, 1999 WL 33260839 (C.D. Cal. Aug. 31, 2009) (explaining that existence of a copyright claim does not necessarily bar trademark protection for the same underlying material). As such, the Court would find that Plaintiff has sufficiently alleged a claim for direct trademark infringement.7 2. Contributory Infringement However, the Court would find that Plaintiff has failed to sufficiently allege a claim for contributory liability. "To be liable for contributory trademark infringement, a defendant must have (1)'intentionally induced’ the primary infringer to infringe, or (2) continued to supply an infringing product to an infringer with knowledge that the infringer is mislabeling the particular product supplied." See Visa, 494 F.3d at 807 (citing Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855 (1982)). "The tests for secondary trademark infringement are even more difficult to satisfy than those required to find secondary copyright infringement." Id. (citing Sony Corp. v. Universal City Studios, 464 U.S. 417, 439 n.19 (1984)). CloudFlare argues that, with respect to the first prong, the FAC is devoid of any allegations that CloudFlare engaged in affirmative acts to invite third parties to infringe on Plaintiff’s trademark. See MTD at 16:5-19. The Court would agree. With respect to the second prong, where a defendant supplies a service rather than a product, the Visa court explained that "[f]or liability to attach, there must be'direct control and monitoring of the instrumentality used by a third party to infringe the plaintiff’s mark.’" Id. (citing Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 984 (9th Cir. 1999)). If a defendant does not "have the power to remove infringing material from [infringing] websites or directly stop their distribution over the Internet," a defendant does not have the requisite "direct control." Id. 7 CloudFlare separately contends that the alleged infringing trademark use occurs on "genuine (even if unauthorized) copies of actual ALS content." Id. at 18:22-24. CloudFlare thus asserts that Plaintiff has pleaded a nominative fair use, and as such, there is no direct trademark infringement. Id. Plaintiff responds that its allegations are not that its trademark has been placed on genuine ALS works, but rather, that it has been placed on illegal copies of ALS works. See Opp’n at 23:6-16. Indeed, as Plaintiff points out, the authority cited to by CloudFlare in support of its nominal fair use theory all involved resale of genuine goods, not copies of those goods. See, e.g., Adobe Sys. Inc. v. Christenson, 809 F.3d 1071, 1081-82 (9th Cir. 2015). The Court would agree with Plaintiff that, at least for purposes of this motion, Plaintiff’s trademark infringement claim is not barred by a nominal fair use defense. 14 As CloudFlare points out, the FAC contains no allegations that CloudFlare has the ability to remove infringing material from its client’s websites, nor that it can directly stop distribution of infringing material by those websites. At best, CloudFlare can terminate its client’s accounts, which would make it harder for consumers to access the infringing material; however, this is not sufficient to establish direct control. See Visa, 494 F.3d at 807 ("At most, [plaintiff] alleges that [d]efendants can choose to stop processing payments to these websites, and that this refusal might have the practical effect of stopping or reducing the infringing activity. This, without more, does not constitute'direct control.’"). In sum, the Court would DISMISS the sixth cause of action for contributory trademark infringement against CloudFlare. D. The FAC Fails to State a Claim for Unfair Competition CloudFlare also contends that Plaintiff’s unfair competition claim is deficient – that cause of action alleges that the "acts of trademark infringement, direct and secondary, constitute unfair competition under Cal. Bus. & Prof. Code § 17200." See FAC ¶ 108. As CloudFlare points out, the Ninth Circuit has made clear that this cause of action is "substantially congruent" to a claim under the Lanham Act. See Cleary v. News Corp., 30 F.3d 1255, 1262-63 (9th Cir. 1994). Thus, because Plaintiff’s cause of action for contributory trademark infringement fails, its § 17200 claim necessarily fails. See Japan Telecom, Inc. v. Japan Telecom Am. Inc., 287 F.3d 856, 875 ("[Plaintiff’s] California unfair competition claim fails because its related Lanham Act claims fail."); Denbicare U.S.A. Inc. v. Toys "R" Us, Inc., 84 F.3d 1143, 1152 (9th Cir. 1996) (dismissing § 17200 claim where complaint failed to state a claim for trademark infringement). As such, the Court would DISMISS the seventh cause of action for unfair competition against CloudFlare. IV. Conclusion In sum, the Court would DENY CloudFlare’s Motion with respect to the second cause of action for contributory copyright infringement. The Court would GRANT the Motion with respect to the third, sixth, and seventh causes of action. These causes of action would be dismissed without prejudice, as Plaintiff may be able to allege facts sufficient to support these claims. 15

STATUS REPORT (JOINT) filed by Plaintiff ALS Scan, Inc.

1 Jay M. Spillane (Bar No. 126364) jspillane@spillaneplc.com 2 SPILLANE TRIAL GROUP PLC 3 468 N. Camden Drive, Second Floor Beverly Hills, CA 90210 4 (424) 217-5980 (888) 590-1683 (fax) 5 Attorneys for Plaintiff ALS Scan, Inc. 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 ALS SCAN, INC., a Maryland Case No.: 2:16-cv-05051-GW-AFM 12 corporation, JOINT STATUS CONFERENCE REPORT 13 Plaintiff, 14 Date: Nov. 28, 2016 Time: 8:30 a.m. 15 vs. Place: Courtroom 9D 350 W. 1st Street 16 Judge: Hon. George H. Wu CLOUDFLARE, INC., a Delaware 17 corporation; OVH SAS, a French corporation; HEBERGEMENT OVH 18 INC., a Québec provincial corporation; 19 DOLPHIN MEDIA LTD., a Hong Kong 20 company; HIVELOCITY VENTURES CORPORATION, a Florida corporation; 21 STEADFAST NETWORKS, LLC, a 22 Delaware limited liability company; and DOES 1-10, inclusive, 23 24 Defendants. 25 26 27 28 07215-00001/8582297.1 Joint Status Conference Report 1 Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure, Local 2 Rule 26-1, and the Court’s October 20, 2016 order setting the Scheduling 3 Conference for November 28, 2016 at 8:30 a.m. (ECF No. 58), Plaintiff ALS 4 Scan, Inc. ("ALS") and Defendants Cloudflare, Inc. ("Cloudflare") and 5 Hivelocity Ventures Corporation ("Hivelocity") submit the following Joint 6 Status Conference Report. 7 Defendants’ initial comment: In light of the current status of this case, 8 with the pleadings not yet settled and various defendants not yet served, and 9 consistent with the Court’s comments at the October 24, 2016 hearing that the 10 Court was not expecting the parties to be able to address all of the Rule 26(f) 11 issues at this juncture, Defendants respectfully request the right to seek 12 modification or amendment of the below-referenced scheduling proposals, once 13 all parties have appeared and the pleadings have been finalized. 14 Initial Disclosures: Concerning Initial Disclosures under FRCP 15 26(a)(1)(A), the parties propose as follows: 16 Plaintiff’s Position. ALS proposes to exchange Initial Disclosures on 17 December 12, 2016. ALS believes that the parties should reasonably be able to 18 draft, approve and send disclosures within three weeks of filing of this report. 19 ALS believes the Defendants’ request for an exceptionally late initial disclosure 20 is inconsistent with their below request for an early and aggressive discovery 21 cutoff on "territoriality." 22 Defendants’ Position. Cloudflare proposes to exchange Initial 23 Disclosures on December 20, 2016. Hivelocity proposes to exchange Initial 24 Disclosures on January 11, 2017. ALS’s proposed date is problematic due to 25 the unavailability of Hivelocity’s outside counsel in December due to a pre-26 scheduled trial in another matter in mid-December. 27 Discovery: The parties do not propose changes in the limitations on 28 discovery provided by law. 07215-00001/8582297.1-1-Joint Status Conference Report 1 Plaintiff’s Position. ALS opposes discovery being conducted in phases 2 or limited or focused on particular issues. ALS specifically opposes 3 Cloudflare’s request to conduct a first discovery phase and "early" motion for 4 summary judgment focused exclusively on "extraterritoriality." ALS believes 5 all of the sites in question were either primarily served in the US territory 6 and/or had copies served territorially on Cloudflare’s CDN. ALS will require 7 full discovery from Cloudflare regarding the parties with whom it contracted 8 and efforts to serve copies of infringing content in the US before it will be 9 prepared to oppose summary judgment on extraterritoriality or any other issue. 10 Cloudlare’s DNS blocks information concerning the host and owners of pirate 11 sites, information that ALS needs to urgently discover. ALS believes that 12 discovery should be open now and that the parties should file one MSJ. 13 Cloudflare’s Position. Cloudflare proposes that discovery be phased as 14 to the case against Cloudflare, to permit a brief discovery period limited to the 15 issue of the extraterritoriality of the alleged direct infringements upon which 16 ALS bases its contributory copyright infringement claim against Cloudflare. 17 Extraterritoriality is a threshold issue for all copyright claims, including 18 this one, because the U.S. Copyright Act is territorial and prohibits only 19 domestic acts of direct infringement. Thus, an underlying act of direct 20 infringement occurring abroad cannot form the basis for a contributory 21 infringement claim – even where the contributory acts took place domestically. 1 22 Some courts consider extraterritoriality a question of subject matter jurisdiction. 23 1 See Subafilms Ltd. v. MGM-Pathe Comm’n Co., 24 F.3d 1088, 1093 (9th 24 Cir. 1994); Perfect 10 v. Yandex, 962 F.Supp.2d 1146, 1157-58 (N.D. Cal. 25 2013) (granting summary judgment for a defendant internet service provider on 26 secondary infringement claims, where the underlying directly infringing adult images were hosted on origin servers located abroad, because "[f]or 27 contributory infringement, the servers that matter are the servers where the 28 underlying direct infringement [] occurred.... the underlying direct infringements [must have] occurred in the United States."). 07215-00001/8582297.1-2-Joint Status Conference Report 1 See, e.g., Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 243 F. Supp. 2d 2 1073, 1097 (C.D. Cal. 2003); see also Palmer v. Braun, 376 F.3d 1254, 1258 3 (11th Cir. 2004). Other courts consider extraterritoriality a required element of 4 a copyright claim. See, e.g., Litecubes, LLC v. Northern Light Products, Inc., 5 523 F.3d 1353, 1368 (Fed. Cir. 2008); Shropshire v. Canning, 809 F. Supp. 2d 6 1139, 1141 (N.D. Cal. 2011) (following Litecubes). The Ninth Circuit has not 7 yet ruled on this precise issue, though the trend in decisions seems be in favor 8 of finding territoriality to be an element of the claim. Either way, territoriality 9 of the underlying direct infringements (or lack thereof) is a gating item here and 10 should be taken up before reaching the merits. 11 Here, Cloudflare’s preliminary investigations have revealed that all or 12 nearly all of the domains ALS Scan alleges to be direct infringers in the Second 13 Amended Complaint are hosted by others on origin servers located outside the 14 United States. Thus, ALS’s contributory infringement claim against Cloudflare 15 is not cognizable under the Copyright Act. 16 Cloudflare anticipates that the extraterritoriality issue will dispose of all, 17 or nearly all, of the case against Cloudflare, thereby vastly narrowing or 18 eliminating the need for discovery or motion practice on other issues, such as 19 copyright ownership, registration and chain of title, infringement liability, 20 DMCA safe harbor, Plaintiff’s entitlement (or lack thereof) to statutory 21 damages, and the like. Discovery on extraterritoriality will be minimal and 22 expeditious – Cloudflare need only produce the names of the server hosts of the 23 domains at issue, and the corresponding IP addresses of those domains, which 24 Cloudflare will do expeditiously. Publicly available IP address lookup tools 25 can confirm the geographic location of the servers corresponding to these IP 26 addresses. Cloudflare has proposed an initial two-month period for discovery 27 limited to extraterritoriality issues only, which will allow ALS (and Cloudflare) 28 07215-00001/8582297.1-3-Joint Status Conference Report 1 to ask extraterritoriality-related questions and seek extraterritoriality-related 2 documents. 3 Should the Court wish to receive separate briefing on the issue of phasing 4 discovery to consider extraterritoriality first, Cloudflare would be happy to 5 provide it on an abbreviated and expedited basis. 6 Hivelocity’s Position. Hivelocity does not oppose Cloudflare’s position. 7 Dispositive Motions: 8 Plaintiff’s Position. ALS opposes phased or sequential motions for 9 summary judgment or adjudication. ALS specifically opposes an "early" MSJ 10 on extraterritoriality for the reasons stated above. ALS urges that the 11 defendants are entitled to one MSJ and ALS reserves all rights under FRCP 12 56(d). 13 Cloudflare’s Position. As referenced above, Cloudflare proposes that it 14 be permitted to file an early Rule 56 motion for summary judgment, or in the 15 alternative Rule 12(b)(1) motion to dismiss for lack of subject matter 16 jurisdiction, on the issue of extraterritoriality. If Cloudflare prevails on this 17 issue, it will dispose of all or nearly all of the case against Cloudflare. 18 Resolving this issue as a threshold matter, in the first quarter of 2017, will 19 conserve the parties’ resources and minimize the burdens on this Court. 20 Should this motion not dispose of the entire case against Cloudflare, 21 Cloudflare proposes a regular motion cutoff for all other dispositive motions of 22 May 3, 2018. At that time, Cloudflare anticipates filing at least two motions for 23 summary judgment, on liability and DMCA safe harbor grounds. 24 Hivelocity’s position. Hivelocity does not oppose Cloudflare’s request to 25 file an early dispositive motion, nor Cloudflare’s request to file more than one 26 summary judgment motion. 27 28 07215-00001/8582297.1-4-Joint Status Conference Report 1 Other Motions: The parties anticipate moving the Court for entry of a 2 Protective Order governing the exchange of confidential and highly confidential 3 information. 4 ESI and Privilege: The parties do not believe that the case involves 5 special or difficult issues concerning electronically stored information or 6 privilege. 7 Complex Litigation: The parties do not believe that the Manual For 8 Complex Litigation should be utilized. 9 ADR: The parties select ADR Procedure No. 3 (private mediator). 10 Status of Pleadings (Domestic Defendants): ALS represents that: 11 Hivelocity filed an Answer. ECF No. 56. Steadfast has been served and ALS 12 has requested a clerk’s default on Steadfast. ECF Nos. 61, 65. The only claim 13 against Cloudflare in the Second Amended Complaint is for contributory 14 infringement, which the Court has already ruled states a claim, thus ALS is 15 expecting Cloudflare to file an Answer. 16 Service on Foreign Defendants: 17 Plaintiff’s position. There are three foreign defendants specifically 18 named in the Second Amended Complaint, the OVH Companies and Dolphin. 19 ALS is in the process of serving those Defendants under Rule 4. 20 The defense seeks a distant trial date in part relying on anticipated delays 21 involving service, possible motions to dismiss, etc. regarding the foreign 22 defendants. ALS desires the earliest possible trial date. If serving and 23 obtaining responses from the foreign defendants does unduly elongate 24 administration of the case, ALS may request that the case be severed for a 25 separate trial as to those defendants. If the Court is unwilling to entertain such 26 a motion, ALS may dismiss the foreign defendants without prejudice and name 27 those defendants, potentially along with other presently unknown parties, in a 28 separate action and file a notice of related case. 07215-00001/8582297.1-5-Joint Status Conference Report 1 Defendants’ Position. It is unclear why ALS has not made meaningful 2 progress in serving the foreign defendants in the more than five months that 3 have passed since ALS filed this action. ALS’s stance that it should receive a 4 trial date less than eight months from now because it "might" choose to dismiss 5 these foreign defendants is immaterial. As of now, these foreign defendants are 6 in the case, and based on ALS’s representations below, ALS may add even 7 more foreign defendants to the case in the future. ALS is the master of its 8 complaint and chose to file a cumbersome, multi-defendant action with multiple 9 foreign parties. A realistic case schedule should be set based on the current 10 parties and pleadings, and if ALS subsequently elects to narrow its case and 11 dismiss parties or claims, the schedule can be revisited at that time. 12 Additional Parties: 13 Plaintiff’s position. ALS is not aware of the identity of certain hosts and 14 owners of the sites identified in the Second Amended Complaint, largely 15 because they use Cloudflare for DNS services and thus their names are not 16 accessible through public domain lookup services. ALS will serve discovery on 17 Cloudflare to learn the names of these parties. ALS will either file and serve 18 Doe amendments specifically naming these parties in this action when their 19 identities are learned, or file a separate action naming those parties with a notice 20 of related case. Again, ALS would be inclined toward the second option if 21 naming Doe defendants in this action is going to unduly extend the trial date. 22 Defendants’ position. Defendants submit that ALS’s intention to add yet 23 more defendants to this six-defendant case underscores why ALS’s proposed 24 case schedule is infeasible and unworkable, and requests that the Court adopt 25 Defendants’ proposed schedule instead. Even with the three existing and as-26 yet-unserved foreign defendants, hailing from Canada, France and Hong Kong, 27 ALS’s proposed schedule of less than eight months to trial is impractical. 28 Indeed, these defendants do not even have the opportunity to have their voices 07215-00001/8582297.1-6-Joint Status Conference Report 1 heard in connection with this case scheduling conference (if there is even 2 personal jurisdiction over them in the first place). 3 Cloudflare will provide Plaintiff with the identities of the origin server 4 hosts of the domains at issue in the case against Cloudflare, as listed in 5 paragraph 55 of the Second Amended Complaint. Indeed, Cloudflare would 6 have done so months ago per Cloudflare’s usual DMCA policy and practice, 7 had Plaintiff sent Cloudflare valid and properly directed DMCA notices in the 8 first place. See Cloudflare Support, "How do I file a DMCA complaint?", 9 available at https://support.cloudflare.com/hc/en-us/articles/200167716-How-10 do-I-file-a-DMCA-complaint ("All DMCA complaints must be submitted to the 11 DMCA form … When presented with a valid complaint we can provide who 12 the web hosting provider is for the site in question."). 13 Other Matters: N/A 14 Case Schedule. The parties propose the following case schedules: 15 ALS: 16 Non-expert discovery cutoff April 1, 2017 17 Exchange expert reports under April 7, 2017 18 FRCP R. 26(a)(2) 19 Rebuttal expert reports April 21, 2017 20 Expert discovery cutoff May 5, 2017 21 Last day to file discovery motions May 8, 2017 22 and any other pretrial motion, 23 including dispositive motions 24 Final pretrial conference June 26, 2017 25 Jury trial (five day estimate) July 10, 2017 2 26 2 ALS’s owner and key witness Sarah Walsh has planned two out of country 27 trips that render her unavailable starting July 24, 2017 and into September 28 2017. ALS picked the July 10, 2017 trial date and related dates so that the case can be tried within one year of filing, and so that Ms. Walsh can appear at the 07215-00001/8582297.1-7-Joint Status Conference Report 1 Defendants: 2 Defendants propose the following schedule, which they believe builds in 3 sufficient time to finalize the pleadings, account for service of all named 4 defendants, account for possible amendments to the pleadings or addition of 5 parties to the case, to exchange necessary discovery, and to permit the orderly 6 filing and adjudication of dispositive motions: 7 Deadline for ALS to complete January 31, 2017 8 service on all named defendants, or 9 to seek leave for an extension of this 10 deadline upon a showing of 11 reasonable diligence 12 Expedited discovery cutoff for January 31, 2017 13 discovery pertaining to 14 extraterritoriality issues only (for 15 case against Cloudflare) 16 Cloudflare’s deadline to file its February 23, 2017 17 dispositive motion on 18 extraterritoriality grounds 19 Hearing on Cloudflare’s March 23, 2017 20 extraterritoriality motion 21 Regular fact discovery commences March 24, 2017 22 as to Cloudflare 23 Deadline to amend pleadings or add April 30, 2017 24 parties 25 Regular fact discovery cutoff for all November 17, 2017 26 parties 27 28 trial before she leaves. If this trial date is not possible, the next available trial date for ALS would need to be no earlier than October 1, 2017. 07215-00001/8582297.1-8-Joint Status Conference Report 1 Deadline to exchange expert reports December 15, 2017 2 under FRCP R. 26(a)(2) on all 3 issues on which the proffering party 4 bears the burden of proof 5 Deadline to exchange rebuttal January 12, 2018 6 expert reports 7 Expert discovery cutoff February 9, 2018 8 Last day to file discovery motions March 9, 2018 9 Last day to file dispositive motions May 3, 2018 10 Final pretrial conference August 7, 2018 11 Jury trial (7-10 day estimate) August 28, 2018 12 13 DATED: November 21, 2016 SPILLANE TRIAL GROUP PLC 14 15 16 17 By: _____________________________ Jay M. Spillane 18 Attorneys for Plaintiff ALS Scan, Inc. 19 20 DATED: November 21, 2016 QUINN EMANUEL URQUHART & 21 SULLIVAN LLP 22 23 24 By: _____________________________ Rachel Herrick Kassabian 25 Attorneys for Defendant Cloudflare, Inc. 26 27 28 07215-00001/8582297.1-9-Joint Status Conference Report 1 Deadline to exchange expert reports December 15, 2017 2 under FRCP R. 26(a)(2) on all 3 issues on which the proffering party 4 bears the burden of proof 5 Deadline to exchange rebuttal January 12, 2018 6 expert reports 7 Expert discovery cutoff February 9, 2018 8 Last day to file discovery motions March 9, 2018 9 Last day to file dispositive motions May 3, 2018 10 Final pretrial conference August 7, 2018 11 Jury trial (7-10 day estimate) August 28, 2018 12 13 DATED: November 21, 2016 SPILLANE TRIAL GROUP PLC 14 15 16 17 By: _____________________________ Jay M. Spillane 18 Attorneys for Plaintiff ALS Scan, Inc. 19 20 DATED: November 21, 2016 QUINN EMANUEL URQUHART & 21 SULLIVAN LLP 22 23 24 By: _____________________________ Rachel Herrick Kassabian 25 Attorneys for Defendant Cloudflare, Inc. 26 27 28 07215-00001/8582297.1-9-Joint Status Conference Report 1 DATED: November 21, 2016 KRAMER HOLCOMB SHEIK LLP 2 3 By: _____________________________ 4 John L. Holcomb 5 Shahrokh Sheik 6 Attorneys for Defendant Hivelocity Ventures Corporation 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 07215-00001/8582297.1-10-Joint Status Conference Report

MINUTES OF SCHEDULING CONFERENCE held before Judge George H. Wu: Discovery cut-off 4/3/2017. Motions due by 6/1/2017. Last date to conduct settlement conference is 3/24/2017. Pretrial Conference set for 6/29/2017 at 08:30 AM. Jury Trial set for 7/11/2017 at 09:00 AM. Please refer to the Court's order for specifics. Court Reporter: Katie Thibodeaux.

Case 2:16-cv-05051-GW-AFM Document 69 Filed 11/28/16 Page 1 of 1 Page ID #:1268 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES-GENERAL Case No. CV 16-5051-GW(AFMx) Date November 28, 2016 Title ALS Scan, Inc. v. Cloudflare, Inc., et al. Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE Javier Gonzalez Katie Thibodeaux Deputy Clerk Court Reporter/Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Jay M. Spillane Rachel H. Kassabian Tammy Wu PROCEEDINGS: SCHEDULING CONFERENCE The Court sets the following: Mediation cutoff March 24, 2017 Post-Mediation Status Conference March 27, 2017 at 8:30 a.m. Discovery cutoff April 3, 2017 Expert discovery cutoff May 1, 2017 Motion hearing cutoff June 1, 2017 Pretrial Conference June 29, 2017 at 8:30 a.m. Jury Trial July 11, 2017 at 9:00 a.m. The parties are referred to ADR Procedure No. 3-Private Mediation. cc: ADR Program: 06 Initials of Preparer JG CV-90 (06/04) CIVIL MINUTES-GENERAL Page 1 of 1

RECEIPT FOR FOREIGN SERVICE from U. S. Post Office for documents Re: (Summons Issued (Attorney Civil Case Opening) {{7}}, Complaint (Attorney Civil Case Opening) {{1}}) mailed to Ouh Sas at 2 Rue Kellerman, 59100 Roubaix, France and and Dolphin Media Ltd at Suite 801, 8/F, Singga Commercial Centre, 144-151 Connaught Road West, Hong Kong on 12/2/16. (mrgo)

Case 2: 16-CV-05051-GW-AFM Document 74 Filed 12/02/16 Page 1 of 5 Page ID #: 1292 FILED CLERK, U. S. DISTRICT COURT 12/2/2016 CENTRAL DISTRICT OF CALIFORNIA BY: DEPUTY MM ALS SCAN, INC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NUMBER 2: 16-CV-05051-GW (AFMx) PLAINTIFF(S) RECEIPT FOR FOREIGN SERVICE FROM UNITED STATES POST OFFICE RE COMPLAINT CLOUDFARE, INC et al DEFENDANT(S). (ATTACH RECEIPT(S) FOR REGISTERED MAIL HERE) CV-75 (06/07) RECEIPT FOR FOREIGN SERVICE FROM U. S. POST OFFICE RE COMPLAINT Case 2: 16-cv-05051-GW-AEM Document 74 Filed 12/02/16: Page 2 of 5 Page ID #: 1293 = = = = = = = = = = = = = = = = = = = 11 = = S = = ut ip > www.usps.com/nei pruia ms. num. Order stamps at usps.com/shop or call 1-800-Stamp24. Go to usps.com/clicknship to print shipping labels with postage. For other information call 1-800-ASK-USPS. FEDERAL LOS ANGELES 300 N LOS ANGELES ST LBBY LOS ANGELES CA 90012-9997 0545020012 12/02/2016 (800) 275-8777 10: 44 AM * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * = = = = = = = = = = = = = = = = = = = = = IF (! = = 11 It il IL 13 It ILI I1 It il Il II Il 4 SIIH = IR II I 1 Il 3 IL IL = = = = = = = = Es = = = li IL Get your mail when and where you want it with a secure Post Office Box. Sign up for a box online at usps.com/poboxes. Qty * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Please visit www.usps.com (R) to complete International Mail customs forms onlinie and to ship packages from your home or office using Click-N-Ship {R) service. ALL sales final on stamps and postage Refunds for guaranteed services only Thank you for your business HELP US SERVE YOU BETTER TELL US ABOUT YOUR RECENT POSTAL EXPERIENCE Product Sale Final Description Price First-class $ 8. 85 Intl Large Envelope (International). 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For information on filing an insurance claim go to h +... LS. District (caur Business To Be Completed By Post Office Address 32 N. Son ing St that Angeles (A na 44-3535 State Case 2: 16-CV-05051-GW-AFM Document 74 Regilasted MƏZ116, Page 3 of 5 Pagqip Bale Stamp LC533601balUS USPS® Customs Declaration-CN 22 0012 IMPORTANT: The item/parcel may be opened officially. See Reg. Fee $ 8. 85 16 Privacy Notice on reverse of gender's Instructions page. Please print in English and press firmiy: you are making multiple copies. * 2 Sender's Last Name Handling $ 13. 4 (Return First Charge Receipt Postage $ 3. 70 Restricted $ 0. 00 Delivery Received by $ 0. 00 $ 25. 95 Customer Must Declare Domestic Insurance up to $ 25, 000 is included Full Value. 00 12/02K23p6 the declared value. International Indemnity is limited. (See Reverse). LOS ANGELES, CAPOTZ Telephone/Fax or Email * Addressee's Last Name KS TStift (eitt 3II. N. Spring Street Les free ws, TA GDO DAphin Media Ltd. State/Province Post Code Si Hong & qnSS/E, Singsc (ommetCics (entre Aagt Telephone/Fax or Email 44-ISi Connaught Road west 2-Shipping Label (left) and Customer Copy (right) AG PS Form 3806, Receipt for Registered Mail Copy 1-Customer January 2014 (7530-02-000-9051) (See Information on Reverse) For domestic delivery information, visit our website at www.usps.com First Business Ob ishin fidia Ltd I 86, 8/E ingga lisen met alle FROM To Be Completed By Customer (Please Print) All Entrles Must Be In Ballpoint or Typed TO del-SL (antes 15: 33 Country * LC5336O1695US USPS® Customs Declaration – CN 22 IMPORTANT: The item/parcel may be opened officially. See & Privacy Notice on reverse of Sender's Instructions page. Please Sprint in English and press firmly; you are making multiple copies. der's Last Name First 16 LLS District (au Registered No. RE158986134US Date Stamp 0012 Reg. Fee $ 8. 85 Handling $ 13. 4LReturn DEC Charge Receipt Postage $ 3. 70 Restricted $ 0. 00 Delivery Received by-. $ 25. 95 Usos Customer Mst Reclare Full Value P. UU 12/0Pozitif asurance up to $ 25, 000 is included 12/U-based up the declared value. International Indemnity is limited. (See Reverse). Business ܫܵܬ݁ܓ݁ܶܪܰܟ݂ܝܼܥܠܰܝ ܕ݁ܶܐܢܳܐ To Be Completed By Post Office das Angeles (4 housia ar A-ISIS Addressee's Last Name First Business VA Sas ali Rus. Kellana LOS ANGELES, CA 2002 OFFICIAL USE IS. Distitt Court 39 N. Spong St. les og igeles, CA 90012 USA Ovh Sas 2 RE2an Sellerman FROM To Be Completed By Customer (Please Print) All Entrles Must Be in Ballpolnt or Typed aikana State/Province Post Code 5000 State/Province Post Code P Country Telephone/Fax or Email ht2 ܬ݁ܝܰܪܰܝܓ݁ܙܳܟ݁ܳܬܝ 6ice DETACH 2-Shipping Label (left) and Customer Copy (right) PS Form 3806, Receipt for Registered Mail Copy 1-Customer January 2014 (7530-02-000-9051) (See Information on Reverse) For domestic delivery information, visit our website at www.usps.com Case 2: 16-cv-05051-GW-AFM Document 74 Filed 12/02/16 Page 4 of 5 Page ID #: 1295 CLERK, US DISTRICT COURT 312 N. Spring St., Room G-8 Los Angeles, CA. 90012 Ouh Sas 1 2 Kue el la man 59 100 lanbey, France Case 2: 16-cv-05051-GW-ARM Document 74 Filed 12/02/16 Page 5 of 5 Page ID #: 1296 CLEnik, U. S. DISTRICT COURT 312 N. Spring St., Room G-8 Los Angeles, CA. 90012 tratti * * * Sarekanisme Dolphin Media Le. Suite Sol, ET Singga Contreraal Centre Y-151 Connaught Road West Hong Kong Ret til =

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Description
1
07/11/2016
COMPLAINT Receipt No: 0973-18160378 - Fee: $400, filed by Plaintiff ALS Scan, Inc.
1
Exhibit 1
2
Exhibit 2) (Attorney Jay M Spillane added to party ALS Scan, Inc.(pty:pla)
2 Attachments
2
07/11/2016
CIVIL COVER SHEET filed by Plaintiff ALS Scan, Inc.
3
07/11/2016
Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening) 1 filed by Plaintiff ALS Scan, Inc.
4
07/11/2016
NOTICE of Interested Parties filed by Plaintiff ALS Scan, Inc.
5
07/12/2016
NOTICE OF ASSIGNMENT to District Judge George H. Wu and Magistrate Judge Alexander F. MacKinnon. (jtil)
6
07/12/2016
NOTICE TO PARTIES OF COURT-DIRECTED ADR PROGRAM filed. (jtil)
7
07/12/2016
21 DAY Summons Issued re Complaint (Attorney Civil Case Opening) 1 as to Defendants Cloudflare, Inc., Tiger Media, Inc., and Gerardus Van Ginneken. (jtil)
8
07/21/2016
STANDING ORDER RE FINAL PRE-TRIAL CONFERENCE FOR CIVIL JURY TRIALS BEFORE JUDGE GEORGE H. WU: (See order for details).
9
07/25/2016
NOTICE OF MOTION AND MOTION for Preliminary Injunction re Against Tiger Media. Motion filed by Plaintiff ALS Scan, Inc. Motion set for hearing on 9/8/2016 at 08:30 AM before Judge George H. Wu.
1
Proposed Order
1 Attachment
10
07/25/2016
MEMORANDUM in Support of NOTICE OF MOTION AND MOTION for Preliminary Injunction re Against Tiger Media. Motion 9 filed by Plaintiff ALS Scan, Inc.
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07/25/2016
DECLARATION of Sarah Walsh in support of NOTICE OF MOTION AND MOTION for Preliminary Injunction re Against Tiger Media. Motion 9 filed by Plaintiff ALS Scan, Inc.
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07/25/2016
DECLARATION of Eric Penn in support of NOTICE OF MOTION AND MOTION for Preliminary Injunction re Against Tiger Media. Motion 9 filed by Plaintiff ALS Scan, Inc.
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Exhibit 1
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Exhibit 2
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Exhibit 3
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Exhibit 4
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Exhibit 5
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Exhibit 6
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Exhibit 7
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Exhibit 8
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Exhibit 9
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Exhibit 12
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Exhibit 14
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Exhibit 15
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Exhibit 16
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Exhibit 17
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Exhibit 18
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Exhibit 19
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Exhibit 20
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Exhibit 21
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Exhibit 22
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Exhibit 23
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Exhibit 25
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Exhibit 26
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Exhibit 27
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Exhibit 28
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Exhibit 29
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Exhibit 30
30 Attachments
13
07/25/2016
DECLARATION of Steve Easton in support of NOTICE OF MOTION AND MOTION for Preliminary Injunction re Against Tiger Media. Motion 9 filed by Plaintiff ALS Scan, Inc.
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Exhibit 1
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Exhibit 2
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Exhibit 10
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Exhibit 11
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Exhibit 12
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Exhibit 13
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Exhibit 14
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Exhibit 15
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Exhibit 16
16 Attachments
14
07/25/2016
DECLARATION of Jay M. Spillane in support of NOTICE OF MOTION AND MOTION for Preliminary Injunction re Against Tiger Media. Motion 9 filed by Plaintiff ALS Scan, Inc.
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Exhibit 1
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Exhibit 2
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Exhibit 3
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Exhibit 4
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Exhibit 5
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Exhibit 6
6 Attachments
15
07/25/2016
NOTICE of Manual Filing filed by Plaintiff ALS Scan, Inc. of disc of Easton emails.
16
07/25/2016
Corrected NOTICE of Manual Filing filed by Plaintiff ALS Scan, Inc. of disc of Easton emails.
17
08/05/2016
NOTICE of Appearance filed by attorney Gary L Bostwick on behalf of Defendants Tiger Media, Inc., Gerardus Van Ginneken (Attorney Gary L Bostwick added to party Tiger Media, Inc.(pty:dft), Attorney Gary L Bostwick added to party Gerardus Van Ginneken(pty:dft))
18
08/08/2016
APPLICATION of Non-Resident Attorney Lawrence G. Walters to Appear Pro Hac Vice on behalf of Defendants Tiger Media, Inc., Gerardus Van Ginneken (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-18330875) filed by defendants Tiger Media, Inc., Gerardus Van Ginneken.
1
Proposed Order re PHV admission of L. Walters
1 Attachment
19
08/08/2016
APPLICATION of Non-Resident Attorney Kevin S. Toll to Appear Pro Hac Vice on behalf of Defendants Tiger Media, Inc., Gerardus Van Ginneken (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-18330922) filed by defendants Tiger Media, Inc., Gerard us Van Ginneken.
1
Declaration of Good Standing
2
Proposed Order
2 Attachments
20
08/09/2016
NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Lawrence G. Walters to Appear Pro Hac Vice on behalf of Defendants Tiger Media, Inc., Gerardus Van Ginneken (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-18330875) 18, APPLICATION of Non-Resident Attorney Kevin S. Toll to Appear Pro Hac Vice on behalf of Defendants Tiger Media, Inc., Gerardus Van Ginneken (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-18330922) 19. The following error(s) was/were found: Local Rule 5-4.3.4 Application not hand-signed.
21
08/10/2016
Corrected APPLICATION of Non-Resident Attorney Lawrence G. Walters to Appear Pro Hac Vice on behalf of Defendants Tiger Media, Inc., Gerardus Van Ginneken (Pro Hac Vice Fee - $325 Previously Paid on 8/8/2016, Receipt No. 25T7LCL1) filed by defendants Tiger Media, Inc., Gerardus Van Ginneken.
22
08/10/2016
Corrected APPLICATION to CORRECT APPLICATION of Non-Resident Attorney Lawrence G. Walters to Appear Pro Hac Vice on behalf of Defendants Tiger Media, Inc., Gerardus Van Ginneken (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-18330875) 18 filed by defendants Tiger Media, Inc., Gerardus Van Ginneken.
23
08/10/2016
Corrected APPLICATION to CORRECT APPLICATION of Non-Resident Attorney Kevin S. Toll to Appear Pro Hac Vice on behalf of Defendants Tiger Media, Inc., Gerardus Van Ginneken (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-18330922) 19 filed by defendants Tiger Media, Inc., Gerardus Van Ginneken.
24
08/10/2016
Corrected APPLICATION to CORRECT Corrected APPLICATION to CORRECT APPLICATION of Non-Resident Attorney Lawrence G. Walters to Appear Pro Hac Vice on behalf of Defendants Tiger Media, Inc., Gerardus Van Ginneken (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-18330875) 18 22 filed by defendants Tiger Media, Inc., Gerardus Van Ginneken.
25
08/10/2016
STIPULATION for Hearing re NOTICE OF MOTION AND MOTION for Preliminary Injunction re Against Tiger Media. Motion 9 filed by Plaintiff ALS Scan, Inc.
1
Proposed Order
1 Attachment
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08/10/2016
NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: Corrected APPLICATION of Non-Resident Attorney Lawrence G. Walters to Appear Pro Hac Vice on behalf of Defendants Tiger Media, Inc., Gerardus Van Ginneken (Pro Hac Vice Fee - $325 Previously Paid on 8/8/2016, Receipt No. 25T7LCL1) 21. The following error(s) was/were found: Local Rule 5-4.3.4 Application not hand-signed.
27
08/10/2016
ORDER by Judge George H. Wu: granting 19, 23 Non-Resident Attorney Kevin S. Toll APPLICATION to Appear Pro Hac Vice on behalf of defendant, TIGER MEDIA, INC. & GERARDUS VAN GINNEKEN, designating Gary L. Bostwick as local counsel. (mrgo)
28
08/10/2016
ORDER by Judge George H. Wu: granting 18, 21 Non-Resident Attorney Lawrence G. Walters APPLICATION to Appear Pro Hac Vice on behalf of defendant TIGER MEDIA, INC. & GERARDUS VAN GINNEKEN, designating Gary L. Bostwick as local counsel. (mrgo)
29
08/12/2016
ORDER RE STIPULATION BETWEEN PLAINTIFF ALS SCAN, INC. AND DEFENDANTS TIGER MEDIA, INC. AND GERARDUS VAN GINNEKEN RE JURISDICTION, DISMISSAL AND CERTAIN MOTIONS by Judge George H. Wu, re NOTICE OF MOTION AND MOTION for Preliminary Injunction re Against Tiger Media Motion 9, and Stipulation for Hearing 25. (Amended Pleadings due by 8/26/2016., Motions to Dismiss shall be filed by 9/5/2016.) (Motion for Preliminary Injunction continued to 10/3/2016 at 08:30 AM before Judge George H. Wu.) (mrgo)
30
08/16/2016
APPLICATION of Non-Resident Attorney Corey D. Silverstein to Appear Pro Hac Vice on behalf of Defendants Tiger Media, Inc., Gerardus Van Ginneken (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-18379015) filed by defendants Tiger Media, Inc., Gerardus Van Ginneken.
1
Proposed Order
1 Attachment
31
08/17/2016
ORDER ON APPLICATION OF NONRESIDENT ATTORNEY TO APPEAR IN A SPECIFIC CASE PRO HAC VICE by Judge George H. Wu: granting 30 Non-Resident Attorney Corey D. Silverstein APPLICATION to Appear Pro Hac Vice on behalf of Tiger Media, Inc., Gerardus Van Ginneken, designating Gary L Bostwick as local counsel.
32
08/18/2016
NOTICE OF DISMISSAL filed by Plaintiff ALS Scan, Inc. pursuant to FRCP 41a(1) as to Gerardus Van Ginneken.
33
08/26/2016
FIRST AMENDED COMPLAINT against DEFENDANTS All Defendants amending Complaint (Attorney Civil Case Opening) 1, filed by Plaintiff ALS Scan, Inc.
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Exhibit 1
2
Exhibit 2
2 Attachments
34
09/05/2016
CERTIFICATE of Interested Parties filed by Defendant Tiger Media, Inc., identifying Gerardus Van Ginneken.
35
09/05/2016
NOTICE OF MOTION AND MOTION to Dismiss First Amended Complaint for Failure to State a Claim on which Relief can be Granted filed by Defendant Tiger Media, Inc. Motion set for hearing on 10/3/2016 at 08:30 AM before Judge George H. Wu.
1
Proposed Order Granting Motion to Dismiss First Amended Complaint for Failure to State a Claim
1 Attachment
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09/05/2016
MEMORANDUM in Support of NOTICE OF MOTION AND MOTION to Dismiss First Amended Complaint for Failure to State a Claim on which Relief can be Granted 35 filed by Defendant Tiger Media, Inc.
1
Exhibit A - JuicyAds Terms of Service
1 Attachment
37
09/05/2016
NOTICE of Appearance filed by attorney Rachel H Kassabian on behalf of Defendant Cloudflare, Inc. (Attorney Rachel H Kassabian added to party Cloudflare, Inc.(pty:dft))
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09/05/2016
NOTICE of Appearance filed by attorney Carolyn M Homer on behalf of Defendant Cloudflare, Inc. (Attorney Carolyn M Homer added to party Cloudflare, Inc.(pty:dft))
39
09/05/2016
STIPULATION Extending Time to Answer the complaint as to Cloudflare, Inc. answer now due 9/26/2016, re Amended Complaint/Petition 33 filed by Defendant Cloudflare, Inc.
1
Proposed Order
1 Attachment
40
09/06/2016
ORDER APPROVING STIPULATION TO EXTEND TIME FOR CLOUDFLARE'S RESPONSE TO FIRST AMENDED COMPLAINT by Judge George H. Wu: CloudFlare shall have until September 26, 2016 to file a response to ALS Scan's First Amended Complaint.
41
09/12/2016
MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Preliminary Injunction re Against Tiger Media. Motion 9 filed by Defendant Tiger Media, Inc.
1
Declaration of Gerardus Van Ginneken
1 Attachment
42
09/12/2016
OBJECTIONS to Declaration (Motion related), 13, Declaration (Motion related), 12, Declaration (Motion related) 11 filed by Defendant Tiger Media, Inc.
43
09/12/2016
MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Dismiss First Amended Complaint for Failure to State a Claim on which Relief can be Granted 35 filed by Plaintiff ALS Scan, Inc.
44
09/19/2016
REPLY in support of NOTICE OF MOTION AND MOTION for Preliminary Injunction re Against Tiger Media. Motion 9 filed by Plaintiff ALS Scan, Inc.
45
09/19/2016
DECLARATION of Eric Penn reply in support of NOTICE OF MOTION AND MOTION for Preliminary Injunction re Against Tiger Media. Motion 9 filed by Plaintiff ALS Scan, Inc.
1
Exhibit 31
2
Exhibit 32
3
Exhibit 33
3 Attachments
46
09/19/2016
REPLY in support of NOTICE OF MOTION AND MOTION to Dismiss First Amended Complaint for Failure to State a Claim on which Relief can be Granted 35 filed by Defendant Tiger Media, Inc.
47
09/23/2016
OBJECTIONS to Declaration (Motion related), 45 filed by Defendant Tiger Media, Inc.
48
09/26/2016
NOTICE of Interested Parties filed by Defendant Cloudflare, Inc.
49
09/26/2016
NOTICE OF MOTION AND MOTION to Dismiss Case Pursuant to Rule 12(b)(6) filed by Defendant Cloudflare, Inc. Motion set for hearing on 10/24/2016 at 08:30 AM before Judge George H. Wu.
1
Proposed Order
1 Attachment
50
09/26/2016
MEMORANDUM in Support of NOTICE OF MOTION AND MOTION to Dismiss Case Pursuant to Rule 12(b)(6) 49 filed by Defendant Cloudflare, Inc.
51
10/03/2016
MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Dismiss Case Pursuant to Rule 12(b)(6) 49 filed by Plaintiff ALS Scan, Inc.
52
10/03/2016
DECLARATION of Jay M. Spillane in opposition to NOTICE OF MOTION AND MOTION to Dismiss Case Pursuant to Rule 12(b)(6) 49 filed by Plaintiff ALS Scan, Inc.
1
Exhibit A
2
Exhibit B
3
Exhibit C
4
Exhibit D
5
Exhibit E
6
Exhibit F
6 Attachments
53
10/03/2016
MINUTES OF MOTION BY PLAINTIFF ALS SCAN, INC. FOR A PRELIMINARY INJUNCTION AGAINST DEFENDANT TIGER MEDIA, INC. 9 ; DEFENDANT TIGER MEDIA INC.'S MOTION TO DISMISS PLAINTIFFS FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM 35 Hearing held before Judge George H. Wu. Based on the Tentative, and for reasons stated on the record, Defendant Tiger's motion is GRANTED WITH LEAVE TO AMEND. Plaintiff's motion for preliminary injunctive relief is MOOT. Court Reporter: Katie Thibodeaux. (mrgo)
54
10/04/2016
STIPULATION Extending Time to Answer the complaint as to Hivelocity Ventures Corporation answer now due 10/18/2016, re Amended Complaint/Petition 33 filed by Defendant Hivelocity Ventures Corporation.
1
Proposed Order)(Attorney John Lewis Holcomb, Jr added to party Hivelocity Ventures Corporation(pty:dft)
1 Attachment
55
10/10/2016
REPLY in support of NOTICE OF MOTION AND MOTION to Dismiss Case Pursuant to Rule 12(b)(6) 49 filed by Defendant Cloudflare, Inc.
56
10/18/2016
ANSWER to Amended Complaint/Petition 33 with JURY DEMAND filed by Defendant Hivelocity Ventures Corporation.
57
10/19/2016
NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Answer to Complaint (Attorney Civil Case Opening) 56. The following error(s) was found: Local Rule 7.1-1 No Notice of Interested Parties and/or no copies. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so.
58
10/20/2016
(IN CHAMBERS) COURT ORDER by Judge George H. Wu: On the Court's own motion, a Scheduling Conference is set for November 28, 2016, at 8:30 AM Counsel are reminded of their obligations to disclose information, confer on a discovery plan, and report to the Court, as required by F.R.C.P. 26 and the Local Rules of this Court. Trial counsel are ordered to be present. A Joint 26(f) Report shall be filed with the Court not later than November 14, 2016. See Local Rule 26-1. Plaintiff's counsel is directed to give notice of the scheduling conference to all parties that have appeared in this action, and is directed to give notice of the scheduling conference immediately to each party that makes an initial appearance in the action after this date.
59
10/24/2016
MINUTES OF CLOUDFLARE, INC.'S MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6) 49 held before Judge George H. Wu: Court hears oral argument. The Tentative circulated and attached hereto, is adopted as the Court's Final Ruling. Defendant Cloudflare's motion is GRANTED WITH LEAVE TO AMEND. Plaintiff will have until November 11, 2016 to file a Second Amended Complaint. Defendants will have three weeks from November 11 to respond. The scheduling conference remains on calendar for November 28, 2016 at 8:30 AM Parties will file a joint Rule 26(f) report by noon on November 21, 2016. Court Reporter: Katie Thibodeaux.
60
10/24/2016
AMENDED MINUTES held before Judge George H. Wu re: 59. CORRECT RULING ATTACHED.
61
10/28/2016
PROOF OF SERVICE Executed by Plaintiff ALS Scan, Inc., upon Defendant Steadfast Networks LLC served on 9/19/2016, answer due 10/11/2016. Service of the Summons and Complaint were executed upon Sean D. Auton, agent for service in compliance with California Code of Civil Procedure by service on a domestic corporation, unincorporated association, or public entity.Original Summons NOT returned.
62
11/08/2016
NOTICE TO PARTIES by District Judge George H. Wu. Effective November 14, 2016, Judge Wu will be located at the 1st Street Courthouse, COURTROOM 9D on the 9th floor, located at 350 W. 1st Street, Los Angeles, California 90012. All Court appearances shall be made in Courtroom 9D of the 1st Street Courthouse, and all mandatory chambers copies shall be hand delivered to the judge's mail box outside the Clerk's Office on the 4th floor of the 1st Street Courthouse. The location for filing civil documents in paper format exempted from electronic filing and for viewing case files and other records services remains at the United States Courthouse, 312 North Spring Street, Room G-8, Los Angeles, California 90012. The location for filing criminal documents in paper format exempted from electronic filing remains at Edward R. Roybal Federal Building and U.S. Courthouse, 255 East Temple Street, Room 178, Los Angeles, California 90012. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (rrp) TEXT ONLY ENTRY
63
11/11/2016
NOTICE OF DISMISSAL filed by Plaintiff ALS Scan, Inc. pursuant to FRCP 41a(1) as to Tiger Media, Inc., Gerardus Van Ginneken.
64
11/11/2016
SECOND AMENDED COMPLAINT against DEFENDANTS Cloudflare, Inc., DOES, Dolphin Media Ltd., Hebergement OVH Inc., Hivelocity Ventures Corporation, OVH SAS, Steadfast Networks LLC amending Complaint (Attorney Civil Case Opening) 1, filed by Plaintiff ALS Scan, Inc.
1
Exhibit 1
2
Exhibit 2
2 Attachments
65
11/18/2016
REQUEST for Clerk to Enter Default against Defendant Steadfast Networks LLC filed by Plaintiff ALS Scan, Inc.
66
11/21/2016
NOTICE OF DEFICIENCY Re: The Clerk cannot enter the requested relief as: Proof of Service is lacking required information. Requesting party shall file a new Request/Application with noted deficiencies corrected in order to have default reconsidered. Proof of service doc. no. 61 is defective as to 3.a. and 3.b. (mrgo)
67
11/21/2016
STATUS REPORT (JOINT) filed by Plaintiff ALS Scan, Inc.
68
11/28/2016
TRANSCRIPT ORDER as to Defendant Cloudflare, Inc. for Court Reporter. Court will contact Karen Beck at karenbeck@quinnemanuel.com with any questions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter.
69
11/28/2016
MINUTES OF SCHEDULING CONFERENCE held before Judge George H. Wu: Discovery cut-off 4/3/2017. Motions due by 6/1/2017. Last date to conduct settlement conference is 3/24/2017. Pretrial Conference set for 6/29/2017 at 08:30 AM Jury Trial set for 7/11/2017 at 09:00 AM Please refer to the Court's order for specifics. Court Reporter: Katie Thibodeaux.
70
12/02/2016
ANSWER to Amended Complaint/Petition, 64 with JURY DEMAND filed by Defendant Cloudflare, Inc.
71
12/05/2016
PROOF OF SERVICE Executed by Plaintiff ALS Scan, Inc., upon Defendant Steadfast Networks LLC served on 9/9/2016, answer due 10/11/2016. Service of the Summons and Complaint were executed upon Sean D. Auton, agent for service in compliance with Federal Rules of Civil Procedure by method of service not specified.Original Summons NOT returned.
72
12/05/2016
Second REQUEST for Clerk to Enter Default against Defendant Steadfast Networks LLC filed by Plaintiff ALS Scan, Inc.
73
12/05/2016
DEFAULT BY CLERK F.R.Civ.P.55(a) as to Steadfast Networks LLC, a Delaware limited liability company. (mrgo)
74
12/02/2016
RECEIPT FOR FOREIGN SERVICE from U. S. Post Office for documents Re: (Summons Issued (Attorney Civil Case Opening) 7, Complaint (Attorney Civil Case Opening) 1) mailed to Ouh Sas at 2 Rue Kellerman, 59100 Roubaix, France and and Dolphin Media Ltd at Suite 801, 8/F, Singga Commercial Centre, 144-151 Connaught Road West, Hong Kong on 12/2/16. (mrgo)
75
12/08/2016
STIPULATION to Set Aside Default as to Steadfast Networks, LLC filed by defendant Steadfast Networks LLC.
1
Proposed Order vacating default and setting date to respond to complaint)(Attorney Paul D Supnik added to party Steadfast Networks LLC(pty:dft)
1 Attachment
76
12/09/2016
ORDER ON STIPULATION TO VACATE DEFAULT AND SET DATE TO RESPOND TO COMPLAINT by Judge George H. Wu, re Stipulation to Set Aside Default, 75. IT IS ORDERED that the default entered against defendant STEADFAST NETWORKS, LLC on December 5, 2016 be vacated; IT IS FURTHER ORDERED that STEADFAST NETWORKS, LLC shall have until January 6, 2017 to file and serve its response to the Second Amended Complaint herein; and IT IS FURTHER ORDERED that STEADFAST NETWORKS, LLC shall not contest jurisdiction or venue in its response to the Second Amended Complaint. (mrgo)
77
12/14/2016
ANSWER to Amended Complaint/Petition, 64 with JURY DEMAND filed by Defendant Hivelocity Ventures Corporation.(Attorney Tammy X Wu added to party Hivelocity Ventures Corporation(pty:dft))
78
12/19/2016
APPLICATION of Non-Resident Attorney Colin T.J. O'Brien to Appear Pro Hac Vice on behalf of Defendant Steadfast Networks LLC (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-19077880) filed by defendant Steadfast Networks LLC. (Attachment s: # 1 Proposed Order)
79
12/19/2016
APPLICATION of Non-Resident Attorney John L. Ambrogi to Appear Pro Hac Vice on behalf of Defendant Steadfast Networks LLC (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-19078034) filed by defendant Steadfast Networks LLC.
80
12/19/2016
Amended APPLICATION of Non-Resident Attorney Colin T.J. O'Brien to Appear Pro Hac Vice on behalf of Defendant Steadfast Networks LLC (Pro Hac Vice Fee - $325 Previously Paid on 12/19/2016, Receipt No. 0973-19077880) filed by defendant Steadfast Networks LLC.
1
Proposed Order
1 Attachment
81
12/20/2016
NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Colin T.J. O'Brien to Appear Pro Hac Vice on behalf of Defendant Steadfast Networks LLC (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-19077880) 78, APPLICATION of Non-Resident Attorney John L. Ambrogi to Appear Pro Hac Vice on behalf of Defendant Steadfast Networks LLC (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-19078034) 79, Amended APPLICATION of Non-Resident Attorney Colin T.J. O'Brien to Appear Pro Hac Vice on behalf of Defendant Steadfast Networks LLC (Pro Hac Vice Fee - $325 Previously Paid on 12/19/2016, Receipt No. 0973-19077880) 80. The following error(s) was/were found: Local Rule 83-2.1.3.3(a) Application not complete: state and/or federal courts to which the applicant has been admitted are not listed.
82
12/20/2016
Second APPLICATION of Non-Resident Attorney Colin T.J. O'Brien to Appear Pro Hac Vice on behalf of Defendant Steadfast Networks LLC (Pro Hac Vice Fee - $325 Previously Paid on 12/19/2016, Receipt No. 0973-19077880) filed by defendant Steadfast Networks LLC.
1
Proposed Order
1 Attachment
83
12/20/2016
Second APPLICATION of Non-Resident Attorney John L. Ambrogi to Appear Pro Hac Vice on behalf of Defendant Steadfast Networks LLC (Pro Hac Vice Fee - $325 Previously Paid on 12/19/2016, Receipt No. 0973-19078034) filed by defendant Steadfast Networks LLC.
1
Proposed Order
1 Attachment
84
12/20/2016
NOTICE OF LODGING filed December 20, 2016 re Second APPLICATION of Non-Resident Attorney Colin T.J. O'Brien to Appear Pro Hac Vice on behalf of Defendant Steadfast Networks LLC (Pro Hac Vice Fee - $325 Previously Paid on 12/19/2016, Receipt No. 0973-19077880) 82
1
Proposed Order
1 Attachment
85
12/22/2016
ORDER by Judge George H. Wu: granting 83 Non-Resident Attorney John L. Ambrogi APPLICATION to Appear Pro Hac Vice on behalf of defendant Steadfast Networks, LLC, designating Paul D. Supnik as local counsel. (mrgo)
86
12/22/2016
ORDER by Judge George H. Wu: granting 82 Non-Resident Attorney Colin T.J. O'Brien APPLICATION to Appear Pro Hac Vice on behalf of defendant Steadfast Networks, LLC, designating Paul D. Supnik as local counsel. (mrgo)
87
12/27/2016
RETURN RECEIPT Executed by Plaintiff ALS Scan, Inc., upon Defendant OVH SAS served on 12/7/2016, answer due 12/28/2016. Service of the Summons and Complaint were executed upon OVH SAS and signed by (signature illegible) by foreign service. (mrgo)
88
01/05/2017
Notice and CERTIFICATE of Interested Parties filed by Defendant Steadfast Networks LLC, identifying None. (O'Brien, Colin)
89
01/05/2017
NOTICE OF MOTION AND MOTION to Dismiss Plaintiff's Second Amended Complaint for Failure to State a Claim filed by defendant Steadfast Networks LLC. Motion set for hearing on 2/9/2017 at 08:30 AM before Judge George H. Wu.
1
Proposed Order Granting Defendant Steadfast Networks LLCs Notice of Motion and Motion to Dismiss Plaintiffs Second Amended Complaint for Failure to State a Claim) (O'Brien, Colin
1 Attachment
90
01/05/2017
MEMORANDUM in Support of NOTICE OF MOTION AND MOTION to Dismiss Plaintiff's Second Amended Complaint for Failure to State a Claim 89 filed by Defendant Steadfast Networks LLC. (O'Brien, Colin)
91
01/11/2017
TEXT ONLY ENTRY (IN CHAMBERS): by Judge George H. Wu: The Court, on its own motion, CONTINUES DEFENDANT STEADFAST NETWORKS LLCS MOTION TO DISMISS PLAINTIFFS SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM 89 previously scheduled for 02/09/2017 to 2/16/2017 at 08:30 AM.THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (jag) TEXT ONLY ENTRY
92
01/16/2017
WAIVER OF SERVICE Returned Executed filed by Plaintiff ALS Scan, Inc. Waiver of Service signed by OVH SAS.
93
01/19/2017
NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction Notice of Motion filed by Defendant Dolphin Media Ltd. Motion set for hearing on 2/27/2017 at 08:30 AM before Judge George H. Wu.
1
Memorandum of Points and Authorities
2
Declaration of Tomas Mazal
3
Request For Judicial Notice
4
Exhibit A in support of Request For Judicial Notice
5
Exhibit B in support of Request For Judicial Notice
6
Exhibit C in support of Request For Judicial Notice
7
Exhibit D in support of Request For Judicial Notice
8
Exhibit E in support of Request For Judicial Notice
9
Proposed Order) (Attorney Stephen M Kernan added to party Dolphin Media Ltd.(pty:dft)
9 Attachments
94
01/23/2017
NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction Notice of Motion 93. The following error(s) was found: Local Rule 7.1-1 No Notice of Interested Parties and/or no copies. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (mrgo)
95
01/24/2017
Supplemental NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction Certificate and Notice of Interested Parties filed by Defendant Dolphin Media Ltd. Motion set for hearing on 2/27/2017 at 08:30 AM before Judge George H. Wu.
96
01/26/2017
MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Dismiss Plaintiff's Second Amended Complaint for Failure to State a Claim 89 filed by Plaintiff ALS Scan, Inc.
97
01/26/2017
REQUEST FOR JUDICIAL NOTICE re NOTICE OF MOTION AND MOTION to Dismiss Plaintiff's Second Amended Complaint for Failure to State a Claim 89 filed by Plaintiff ALS Scan, Inc.
98
01/26/2017
STIPULATION for Protective Order filed by Plaintiff ALS Scan, Inc.
99
01/27/2017
Notice of Electronic Filing re Notice of Deficiency in Electronically Filed Documents (G-112A) 94, Supplemental NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction Certificate and Notice of Interested Parties 95, MEMORANDUM in Opposition to Motion 96, Request for Judicial Notice 97, Stipulation for Protective Order 98 e-mailed to Ryan Evan Carreon at rcarreon@kermanlaw.net bounced due to typo in email address. Primary e-mail address corrected. Notice of Electronic Filing resent addressed to rcarreon@kernanlaw.net. Pursuant to Local Rules it is the attorneys obligation to maintain all personal contact information including e-mail address in the CM/ECF system. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ir) TEXT ONLY ENTRY
100
01/30/2017
NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Supplemental NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction Certificate and Notice of Interested Parties 95. The following error(s) was found: Incorrect event selected. The correct event is: Certificate/Notice of Interested Parties. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (mrgo)
101
01/30/2017
NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Stipulation for Protective Order 98. The following error(s) was found: Proposed Document was not submitted as separate attachment. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (mrgo)
102
02/01/2017
REPLY support NOTICE OF MOTION AND MOTION to Dismiss Plaintiff's Second Amended Complaint for Failure to State a Claim 89 filed by Defendant Steadfast Networks LLC. (O'Brien, Colin)
103
02/02/2017
STIPULATION for Protective Order filed by Plaintiff ALS Scan, Inc.
104
02/03/2017
PROTECTIVE ORDER by Magistrate Judge Alexander F. MacKinnon re Stipulation for Protective Order 103
105
02/06/2017
Opposition in opposition to re: NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction Notice of Motion 93 filed by Plaintiff ALS Scan, Inc.
106
02/06/2017
DECLARATION of Eric Penn in opposition to NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction Notice of Motion 93 filed by Plaintiff ALS Scan, Inc.
1
Exhibit 1
2
Exhibit 2
2 Attachments
107
02/06/2017
DECLARATION of Jay M. Spillane in opposition to NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction Notice of Motion 93 filed by Plaintiff ALS Scan, Inc.
1
Exhibit 1
2
Exhibit 2
3
Exhibit 3
4
Exhibit 4
5
Exhibit 5
6
Exhibit 6
7
Exhibit 7
8
Exhibit 8
9
Exhibit 9
10
Exhibit 10
11
Exhibit 11
12
Exhibit 12
13
Exhibit 13
14
Exhibit 14
15
Exhibit 15
15 Attachments
108
02/09/2017
SEALED DOCUMENT Spillane Declaration with Cloudflare Account Information re NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction Notice of Motion 93, Protective Order 104 filed by Plaintiff ALS Scan, Inc.
1
Exhibit 1
1 Attachment
109
02/13/2017
DECLARATION of Justin Paine re Sealed Document, 108 Declaration in Support of Sealing Cloudflare Customer and Business Records filed by Defendant Cloudflare, Inc.
110
02/13/2017
REPLY in support of NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction Notice of Motion 93 filed by Defendant Dolphin Media Ltd.
1
Objections
2
Declaration of Tomas Mazal
2 Attachments
111
02/16/2017
MINUTES OF DEFENDANT STEADFAST NETWORKS LLC'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM Hearing held before Judge George H. Wu re: 89 MOTION to Dismiss. Defendant Steadfast's motion is GRANTED WITH LEAVE TO AMEND. Scheduling Conference set for 2/27/2017 at 08:30 AM before Judge George H. Wu. Court Reporter: Katie Thibodeaux. (mrgo)
112
02/17/2017
TRANSCRIPT ORDER as to Defendant Cloudflare, Inc. for Court Reporter. Court will contact Karen Beck at karenbeck@quinnemanuel.com with any questions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter.
113
02/23/2017
REQUEST to Dismiss Defendants Hebergement OVH Inc., OVH SAS filed by Plaintiff ALS Scan, Inc.
114
02/23/2017
SUPPLEMENTAL REPORT of DEFENDANTS JOINT SCHEDULING REPORT filed by Defendant Steadfast Networks LLC. (O'Brien, Colin)
115
02/28/2017
TRANSCRIPT ORDER as to Defendant Cloudflare, Inc. for Court Reporter. Court will contact Karen Beck at karenbeck@quinnemanuel.com with any questions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter.
116
02/28/2017
NOTICE of Appearance filed by attorney Mark Thomas Gray on behalf of Defendant Cloudflare, Inc. (Attorney Mark Thomas Gray added to party Cloudflare, Inc.(pty:dft))
117
02/27/2017
MINUTES OF DEFENDANT DOLPHIN MEDIA LIMITED'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION, FOR IMPROPER VENUE, OR IN THE ALTERNATIVE FORUM NON CONVENIENS 93 ; SCHEDULING CONFERENCE held before Judge George H. Wu. Scheduling Conference continued to 3/13/2017 at 08:30 AM before Judge George H. Wu. Parties will file a joint status report by noon on March 8, 2017. Court Reporter: Katie Thibodeaux. (mrgo)
118
03/02/2017
NOTICE OF MOTION AND MOTION to Compel Supplemental Responses to RFPs and Production of Documents against Defendant Hivelocity filed by Plaintiff ALS Scan, Inc. Motion set for hearing on 3/28/2017 at 10:00 AM before Magistrate Judge Alexander F. MacKinnon.
119
03/02/2017
STATEMENT Separate Statement in Support of Motion to Compel filed by Plaintiff ALS Scan, Inc. re: MOTION to Compel Supplemental Responses to RFPs and Production of Documents against Defendant Hivelocity 118.
120
03/02/2017
DECLARATION of Jay M. Spillane in support of MOTION to Compel Supplemental Responses to RFPs and Production of Documents against Defendant Hivelocity 118 filed by Plaintiff ALS Scan, Inc.
1
Exhibit 1
2
Exhibit 2
3
Exhibit 3
3 Attachments
121
03/02/2017
NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality filed by Defendant Cloudflare, Inc. Motion set for hearing on 3/30/2017 at 08:30 AM before Judge George H. Wu.
1
Proposed Order
1 Attachment
122
03/02/2017
MEMORANDUM in Support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121 filed by Defendant Cloudflare, Inc.
123
03/02/2017
NOTICE OF LODGING filed re NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121
1
Separate Statement of Uncontroverted Facts and Conclusions of Law
1 Attachment
124
03/02/2017
APPLICATION to file document Guinn Declaration, Exhibits G-U under seal filed by Defendant Cloudflare, Inc.
1
Declaration of Justin Paine in Support of Application to Seal
2
Redacted Document Public Version of Declaration of Trey Guinn
3
Proposed Order
3 Attachments
125
03/02/2017
SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Guinn Declaration, Exhibits G-U under seal 124 filed by Defendant Cloudflare, Inc.
1
Unredacted Document Guinn Declaration with Sealed Exhibits G-U
2
Proof of Service
2 Attachments
126
03/03/2017
STANDING ORDER RE SUMMARY JUDGMENT MOTIONS by Judge George H. Wu: You are instructed to read and to follow the requirements in Fed. R. Civ. P. 56 andCentral District of California Local Rules 56-1 through 56-3.
127
03/03/2017
ORDER GRANTING CLOUDFLARE, INC.'S APPLICATION TO FILE DOCUMENTS UNDER SEAL by Judge George H. Wu re: 124 APPLICATION to Seal Document. IT IS HEREBY ORDERED THAT: The Application to File Documents Under Seal is hereby GRANTED, and the following documents are ORDERED filed under seal: (see document for list). (mrgo)
128
03/07/2017
SEALED DOCUMENT Declaration of Trey Guinn, Exhibits G-U re Order on Motion for Leave to File Document Under Seal, 127, NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121 filed by Defendant Cloudflare, Inc.
1
Proof of Service
1 Attachment
129
03/08/2017
STATUS REPORT filed by Plaintiff ALS Scan, Inc.
130
03/09/2017
MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121 filed by Plaintiff ALS Scan, Inc.
131
03/09/2017
STATEMENT of Genuine Issues in Opposition to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121 filed by Plaintiff ALS Scan, Inc.
132
03/09/2017
REQUEST TO CONTINUE FRCP R 56(d) re NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121 filed by Plaintiff ALS Scan, Inc.
133
03/09/2017
DECLARATION of Jay M. Spillane in opposition to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121 filed by Plaintiff ALS Scan, Inc.
1
Exhibit A
2
Exhibit B
3
Exhibit C
4
Exhibit D
5
Exhibit E
6
Exhibit F
7
Exhibit G
8
Exhibit H
9
Exhibit I
10
Exhibit J
11
Exhibit K
12
Exhibit L
12 Attachments
134
03/09/2017
DECLARATION of Eric Penn in opposition to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121 filed by Plaintiff ALS Scan, Inc.
1
Exhibit 1
2
Exhibit 2
3
Exhibit 3
4
Exhibit 4
5
Exhibit 5
6
Exhibit 6
7
Exhibit 7
8
Exhibit 8
9
Exhibit 9
10
Exhibit 10
11
Exhibit 11
12
Exhibit 12
13
Exhibit 13
14
Exhibit 14
15
Exhibit 15
15 Attachments
135
03/10/2017
STATEMENT of Defendants Regarding Scheduling Conference re: Status Report 129.
136
03/10/2017
STATEMENT Plaintiff's Statement re 03 13 17 Scheduling Conference filed by Plaintiff ALS Scan, Inc. re: Status Report 129.
137
03/13/2017
TRANSCRIPT ORDER as to Defendant Cloudflare, Inc. for Court Reporter. Court will contact Karen Beck at karenbeck@quinnemanuel.com with any questions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter.
138
03/13/2017
MEMORANDUM in Opposition to Supplemental NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction Certificate and Notice of Interested Parties 95 Supplemental re Nationwide Jurisdiction filed by Plaintiff ALS Scan, Inc.
139
03/13/2017
DECLARATION of Eric Penn in opposition to Supplemental NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction Certificate and Notice of Interested Parties 95 Supplemental re Nationwide Jurisdiction filed by Plaintiff ALS Scan, Inc.
1
Exhibit 1
2
Exhibit 2
3
Exhibit 3
4
Exhibit 4
5
Exhibit 5
6
Exhibit 6
7
Exhibit 7
7 Attachments
140
03/13/2017
DECLARATION of Jay M. Spillane in opposition to Supplemental NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction Certificate and Notice of Interested Parties 95 Supplemental re Nationwide Jurisdiction filed by Plaintiff ALS Scan, Inc.
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Exhibit A
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Exhibit B
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Exhibit C
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Exhibit D
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Exhibit E
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Exhibit F
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Exhibit G
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Exhibit H
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Exhibit I
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Exhibit J
10 Attachments
141
03/13/2017
MINUTES OF Scheduling Conference held before Judge George H. Wu. Court and counsel confer re scheduling. For reasons stated on the record, the scheduling conference is continued to March 27, 2017 at 8:30 AM Parties will file a joint scheduling report by noon on March 16, 2017. Court Reporter: Katie Thibodeaux.
142
03/15/2017
TEXT ONLY ENTRY (IN CHAMBERS): by Judge George H. Wu; The Court has received Plaintiff's Request to Continue Hearing on Motion by Defendant Cloudflare, Inc.'s for Partial Summary Judgment 132. The request is DENIED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (jag) TEXT ONLY ENTRY
143
03/16/2017
STATUS REPORT filed by Defendant Cloudflare, Inc.
144
03/16/2017
REPLY in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121 filed by Defendant Cloudflare, Inc.
1
Declaration of Rachel Kassabian ISO Partial Summary Judgment
2
Declaration of Kenneth Carter ISO Partial Summary Judgment
2 Attachments
145
03/16/2017
RESPONSE IN SUPPORT of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121 regarding Plaintiffs' Statement of Genuine Issues of Material Fact (Dkt. 131) filed by Defendant Cloudflare, Inc.
146
03/16/2017
Request for Evidentiary Ruling on Specified Objections re NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121 filed by Defendant Cloudflare, Inc.
147
03/16/2017
MINUTE ORDER IN CHAMBERS by Judge George H. Wu re: Declaration (Motion related), 139, MEMORANDUM in Opposition to Motion, 138, Declaration (Motion related), 140. The Court is now in receipt of Plaintiff's Offer of Proof. See Docket Nos. 138-140. The Offer of Proof delineates several specific contacts that Dolphin maintains with the United States, which Plaintiff contends are sufficient to establish nationwide jurisdiction. See Docket No. 138 at 3:12-16, 5:24-6:26. Because these contacts raise the possibility that nationwide jurisdiction exists, the Court orders Dolphin to submit a response by March 30, 2017. (mrgo)
148
03/20/2017
THIRD AMENDED COMPLAINT against DEFENDANTS Cloudflare, Inc., DOES, Dolphin Media Ltd., Hivelocity Ventures Corporation, Steadfast Networks LLC amending Complaint (Attorney Civil Case Opening) 1, filed by Plaintiff ALS Scan, Inc.
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Exhibit 1
2
Exhibit 2
2 Attachments
149
03/20/2017
MINUTES OF SCHEDULING CONFERENCE held before Judge George H. Wu. Counsel are not present. Parties are ordered to appear on March 27, 2017 at 8:30 AM, and show cause why sanctions should not be imposed for failure to appear at today's hearing. The Scheduling Conference is continued to March 27, 2017 at 8:30 AM Court Reporter: Marea Woolrich. (mrgo)
150
03/21/2017
MINUTES (IN CHAMBERS) re Plaintiff's Motion to Compel Defendant Hivelocity Ventures Corporation to Serve Further Responses to Production Requests and to Produce Documents (Filed March 2, 2017; ECF No. 118) by Magistrate Judge Alexander F. MacKinnon. On the Court's own motion, the hearing on Plaintiff's Motion to Compel Defendant Hivelocity Ventures Corporation to Serve Further Responses to Production Requests and to Produce Documents, noticed for March 28, 2017, is vacated. The matter is taken under submission on the basis of the papers timely filed. Local Rule 7-15. re 118 Motion to Compel. (sbou)
151
03/22/2017
DECLARATION of SHAHROKH SHEIK IN RESPONSE TO MOTION to Compel Supplemental Responses to RFPs and Production of Documents against Defendant Hivelocity 118 Declaration filed by Defendant Hivelocity Ventures Corporation.
152
03/22/2017
TEXT ONLY ENTRY (IN CHAMBERS): by Judge George H. Wu: Based on the Minutes of the Scheduling Conference 141, the Order to Show Cause issed on March 20, 2017 149 is DISCHARGED. The Scheduling Conference remains set for March 27, 2017 at 8:30 AM THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (jag) TEXT ONLY ENTRY
153
03/22/2017
Notice of Appearance or Withdrawal of Counsel: for attorney Shahrokh Sheik counsel for Defendant Hivelocity Ventures Corporation. Adding Shahrokh Sheik as counsel of record for Hivelocity Ventures Corporation for the reason indicated in the G-123 Notice. Filed by Defendant Hivelocity Ventures Corporation. (Attorney Shahrokh Sheik added to party Hivelocity Ventures Corporation(pty:dft))
154
03/27/2017
MINUTES OF SCHEDULING CONFERENCE held before Judge George H. Wu. Court and counsel confer. Court sets the following: Service of Third Am. Complaint March 20, 2017; Steadfast Response 20 days after service of 3AC; Mediation Cutoff June 23, 2017; Post-Mediation Status Conference June 26, 2017 at 8:30 AM; Discovery Cutoff June 30, 2017; Expert discovery cutoff July 25, 2017; Motion hearing cutoff August 24, 2017; Pretrial conference September 21, 2017 at 8:30 AM; Jury trial (six day estimate) October 3, 2017 at 9:00 AM Court Reporter: Katie Thibodeaux.
155
03/28/2017
STIPULATION to Withdraw Motion MOTION to Compel Supplemental Responses to RFPs and Production of Documents against Defendant Hivelocity 118 filed by DEFENDANT Hivelocity Ventures Corporation.
1
Proposed Order
1 Attachment
156
03/29/2017
ORDER WITHDRAWING PLAINTIFF'S MOTION TO COMPEL 118 WITHOUT PREJUDICE by Magistrate Judge Alexander F. MacKinnon. Re Stipulation 155.
157
03/30/2017
TRANSCRIPT ORDER as to Defendant Cloudflare, Inc. for Court Reporter. Court will contact Karen Beck at karenbeck@quinnemanuel.com with any questions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter.
158
03/30/2017
REPLY In Support of Supplemental NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction Notice of Motion 93 Supplemental re: 4(k)(2) Nationwide Jurisdiction filed by Defendant Dolphin Media Ltd.
1
Declaration of Tomas Mazal
2
Evidentiary Objections
2 Attachments
159
03/30/2017
MINUTES OF CLOUDFLARE, INC.'S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING EXTRATERRITORIALITY Hearing held before Judge George H. Wu re: Motion for Partial Summary Judgment 121. Parties will contact the court clerk by noon on March 30, 2017 whether a telephonic hearing at 3:00 PM will be necessary to resolve the deposition issue. The Court sets a status conference for April 13, 2017 at 8:30 AM Parties will file a joint status report regarding the status of discovery and the offer of proof as to the territoriality/extraterritoriality issue by noon on April 11, 2017. The above-entitled motion is continued to April 13, 2017 at 8:30 AM Court Reporter: Katie Thibodeaux. (mrgo)
160
03/31/2017
TEXT ONLY ENTRY (IN CHAMBERS): by Judge George H. Wu: Counsel has advised the clerk that the deposition issue has been resolved. For that reason, the Court VACATES the status conference set for March 31 at 3:00 PM 159 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (jag) TEXT ONLY ENTRY
161
04/04/2017
ANSWER to Amended Complaint/Petition, 148 JURY DEMAND. filed by Defendant Hivelocity Ventures Corporation.
162
04/04/2017
ANSWER to Amended Complaint/Petition, 148 with JURY DEMAND filed by Defendant Cloudflare, Inc.
163
04/10/2017
ANSWER to Amended Complaint/Petition, 148 with JURY DEMAND filed by Defendant Steadfast Networks LLC.(O'Brien, Colin)
164
04/11/2017
JOINT STATUS REPORT of Cloudflare Motion (4/13/17 hearing) filed by Plaintiff ALS Scan, Inc.
165
04/13/2017
MINUTES OF CLOUDFLARE, INC.'S MOTION FOR PARTIAL SUMMARYJUDGMENT REGARDING EXTRATERRITORIALITY 121 ;STATUS CONFERENCE held before Judge George H. Wu re NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121, NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction Notice of Motion 93. Responses due by 4/20/2017 Replies due by 4/27/2017. Motion set for hearing on 5/4/2017 at 08:30 AM before Judge George H. Wu. Court Reporter: Sandra MacNeil. (mrgo)
166
04/14/2017
TRANSCRIPT ORDER as to Defendant Cloudflare, Inc. for Court Reporter. Court will contact Karen Beck at karenbeck@quinnemanuel.com with any questions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter.
167
04/19/2017
TRANSCRIPT for proceedings held on APRIL 13, 2017, 9:00 AM Court Reporter/Electronic Court Recorder: SANDRA MACNEIL, phone number 213-894-5949; MACNEILSANDY@GMAIL.COM. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 5/10/2017. Redacted Transcript Deadline set for 5/22/2017. Release of Transcript Restriction set for 7/18/2017.
168
04/19/2017
NOTICE OF FILING TRANSCRIPT filed for proceedings APRIL 13, 2017, 9:00 AM re Transcript 167 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. TEXT ONLY ENTRY
169
04/20/2017
MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121 (Offer of Proof) filed by Plaintiff ALS Scan, Inc.
170
04/20/2017
DECLARATION of Eric Penn in opposition to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121 (Offer of Proof) filed by Plaintiff ALS Scan, Inc.
1
Exhibit 1
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Exhibit 2
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Exhibit 3
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Exhibit 4
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Exhibit 5
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Exhibit 6
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Exhibit 7
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Exhibit 8
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Exhibit 9
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Exhibit 10
11
Exhibit 11
12
Exhibit 12
13
Exhibit 13
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Exhibit 14
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Exhibit 15
16
Exhibit 16
17
Exhibit 17
18
Exhibit 18
19
Exhibit 19
20
Exhibit 20
21
Exhibit 21
22
Exhibit 22
22 Attachments
171
04/20/2017
DECLARATION of Jay M. Spillane in opposition to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121 (Offer of Proof) filed by Plaintiff ALS Scan, Inc.
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Exhibit 1
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Exhibit 2
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Exhibit 3
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Exhibit 4
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Exhibit 5
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Exhibit 6
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Exhibit 7
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Exhibit 8
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Exhibit 9
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Exhibit 10
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Exhibit 11
11 Attachments
172
04/20/2017
STATEMENT of Separate Statement of Genuine Disputes NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121 (Offer of Proof) filed by Plaintiff ALS Scan, Inc.
173
04/20/2017
STATEMENT of Demand to Lodge Guinn Deposition NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121 (Offer of Proof) filed by Plaintiff ALS Scan, Inc.
174
04/27/2017
REPLY in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121 following ALS Scan's Offer of Proof filed by Defendant Cloudflare, Inc.
1
Declaration (Supplemental) of Trey Guinn
2
Declaration of Nolan Schoichet
3
Declaration (Supplemental) of Rachel Kassabian
4
Proposed Order (Revised)
4 Attachments
175
04/27/2017
REQUEST FOR EVIDENTIARY RULING re NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121 as to ALS Scan's Offer of Proof in Opposition filed by Defendant Cloudflare, Inc.
176
04/28/2017
RESPONSE IN SUPPORT of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121 regarding Plaintiff's Supplemental Statement of Genuine Issues of Material Fact in Connection with Plaintiff's Offer of Proof (Dkt. 172) filed by Defendant Cloudflare, Inc.
177
04/30/2017
NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Motion Related Document, 175. The following error(s) was found: Incorrect event selected. The correct event is: Civil Events - select - Motion and Related Filings - select Applications/Ex Parte Applications/Motions/ Petitions/Requests - select - Requests - select - Ruling - follow the docketing prompts. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so.
178
05/01/2017
Motion to Strike New Arguments in opposition to re: NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Extraterritoriality 121 filed by Plaintiff ALS Scan, Inc.
179
05/03/2017
OPPOSITION to Plaintiff ALS Scan's Motion to Strike 178 filed by Defendant Cloudflare, Inc.
180
05/04/2017
TRANSCRIPT ORDER as to Defendant Cloudflare, Inc. for Court Reporter. Court will contact Karen Beck at karenbeck@quinnemanuel.com with any questions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter.
181
05/04/2017
MINUTES OF CLOUDFLARE, INC.'S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING EXTRATERRITORIALITY 121 ; DOLPHIN MEDIA, LTD.'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION 93 Hearing held before Judge George H. Wu. Court hears further argument as to Defendant Cloudflare, Inc.'s motion for partial summary judgment. For reasons stated on the record, Defendants motion is continued to May 18, 2017 at 8:30 AM Counsel will contact the clerk by May 16 whether the appearance on May 18 will be required. Argument is held as to Defendant Dolphin's motion to dismiss. Based on the Tentative Rulings issued on February 27, 2017 and April 13, 2017, Defendant Dolphin's motion is GRANTED for lack of personal jurisdiction. Court Reporter: Katie Thibodeaux. (mrgo)
182
05/08/2017
TEXT ONLY ENTRY - IN CHAMBERS: by Judge George H. Wu: Pursuant to the request of Plaintiff's counsel, CLOUDFLARE, INC.S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING EXTRATERRITORIALITY 121 previously scheduled for 05/18/2017 is CONTINUED to 5/25/2017 at 08:30 AM before Judge George H. Wu. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (jag) TEXT ONLY ENTRY
183
05/17/2017
Effective May 24, 2017, Judge MacKinnon will be located at the Edward R. Roybal Federal Building, COURTROOM 840 on the 8th floor, located at 255 East Temple Street, Los Angeles, California 90012. All Court appearances shall be made in Courtroom 840 of the Roybal Federal Building, and all mandatory chambers copies shall be hand delivered to the judge's mail box located outside the Clerk's Office on the 12th floor of the Roybal Federal Building. The location for filing civil documents in paper format exempted from electronic filing and for viewing case files and other records services remains at the United States Courthouse, 312 North Spring Street, Room G-8, Los Angeles, California 90012. The location for filing criminal documents in paper format exempted from electronic filing remains at the Roybal Federal Building, 255 East Temple Street, Room 178, Los Angeles, California 90012. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (rrp) TEXT ONLY ENTRY
184
05/25/2017
TRANSCRIPT ORDER as to Defendant Cloudflare, Inc. for Court Reporter. Court will contact Carolyn Homer at carolynhomer@quinnemanuel.com with any questions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter.
185
05/25/2017
MINUTES OF CLOUDFLARE, INC.'S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING EXTRATERRITORIALITY 121 held before Judge George H. Wu: The Court's Ruling is circulated and attached hereto. Court hears argument. For reasons stated on the record, Defendant's motion is continued to June 1, 2017 at 8:30 AM Court Reporter: Katie Thibodeaux.
186
05/26/2017
NOTICE OF MOTION AND MOTION to Compel Productions and Responses re: RFPs 7, 8, 9, 10, 11, 15, 20, 21, 30 and Interrogatories 6, 7, 9, 10 filed by Defendant Cloudflare, Inc. Motion set for hearing on 6/20/2017 at 10:00 AM before Magistrate Judge Alexander F. MacKinnon.
1
Joint Stipulation
2
Kassabian Declaration
3
Schoichet Declaration (SEALED BY THE COURT)
4
Spillane Declaration
5
Operative Scheduling Order (Dkt. 154)) Modified on 6/16/2017 (ib
5 Attachments
187
06/01/2017
TRANSCRIPT ORDER as to Defendant Cloudflare, Inc. for Court Reporter. Court will contact Karen Beck at karenbeck@quinnemanuel.com with any questions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter.
188
06/01/2017
MINUTES OF CLOUDFLARE, INC.'S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING EXTRATERRITORIALITY 121 granting in part and denying in part 121 MOTION for Partial Summary Judgment Hearing held before Judge George H. Wu: Court hears further argument. The Court's Final Ruling is attached hereto. Based on the Court's Ruling, and for reasons stated on the record, Defendant's motion is GRANTED IN PART and DENIED IN PART. The Court DENIES Cloudflare's Motion as to the following thirteen sites: imgchili.com, slimpics.com, bestofsexpics.com, greenpics.com, imgspot.org, imgsen.se, imgspice.com, stooorage.com, img.yt, vipergirls.to, fboom.me, imgflash.net, and imgtrex.com. The Court GRANTS Defendant's Motion as to pornwire.net. Court Reporter: Katie Thibodeaux.
189
06/02/2017
Joint NOTICE OF MOTION AND MOTION to Continue Pretrial and Trial Dates from a trial start date of 10/3/2017 to a trial state date of 2/13/2018 Re: Scheduling Conference, 154 filed by Defendants Cloudflare, Inc. Motion set for hearing on 6/8/2017 at 08:30 AM before Judge George H. Wu.
1
Memorandum in support of Continuance
2
Declaration of Rachel Kassabian
3
Declaration of Shahrokh Sheik
4
Declaration of John Ambrogi
5
Proposed Order
5 Attachments
190
06/05/2017
NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Joint NOTICE OF MOTION AND MOTION to Continue Pretrial and Trial Dates from a trial start date of 10/3/2017 to a trial state date of 2/13/2018 Re: Scheduling Conference, 154 189. The following error(s) was found: Hearing information is missing, incorrect, or not timely. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (mrgo)
191
06/06/2017
Partial Opposition in opposition to re: Joint NOTICE OF MOTION AND MOTION to Continue Pretrial and Trial Dates from a trial start date of 10/3/2017 to a trial state date of 2/13/2018 Re: Scheduling Conference, 154 189 filed by Plaintiff ALS Scan, Inc.
192
06/06/2017
Opposition in opposition to re: MOTION to Compel Productions and Responses re: RFPs 7, 8, 9, 10, 11, 15, 20, 21, 30 and Interrogatories 6, 7, 9, 10 186 filed by Plaintiff ALS Scan, Inc.
1
Exhibit A
2
Exhibit B
3
Exhibit C
4
Exhibit D
4 Attachments
193
06/06/2017
MEMORANDUM in Support of MOTION to Compel Productions and Responses re: RFPs 7, 8, 9, 10, 11, 15, 20, 21, 30 and Interrogatories 6, 7, 9, 10 186 filed by Defendant Cloudflare, Inc.
1
Supplemental Kassabian Declaration in support of Cloudflare's Motion to Compel
2
Proposed Order
2 Attachments
194
06/06/2017
APPLICATION to file document containing ALS confidential information under seal filed by Defendant Cloudflare, Inc.
1
Redacted Document Public Version of Supplemental Kassabian Declaration
1 Attachment
195
06/06/2017
SEALED DECLARATION IN SUPPORT OF APPLICATION to file document containing ALS confidential information under seal 194 filed by Defendant Cloudflare, Inc.
1
Unredacted Document Sealed Version of Supplemental Kassabian Declaration and Exhibit A
2
Proof of Service
2 Attachments
196
06/07/2017
NOTICE OF LODGING filed with proposed order re APPLICATION to file document containing ALS confidential information under seal 194
1
Proposed Order
1 Attachment
197
06/07/2017
ORDER by Magistrate Judge Alexander F. MacKinnon granting 194 APPLICATION File Information Under Seal. (NOTE: CHANGES HAVE BEEN MADE TO THE PROPOSED ORDER) (See document for details).
198
06/07/2017
MINUTES OF DEFENDANTS' JOINT MOTION TO CONTINUE PRETRIAL AND TRIAL DATES 189 by Telephone held before Judge George H. Wu. Court and counsel confer off the record re above-entitled motion. The motion is TAKEN UNDER SUBMISSION. Court to issue ruling. Court Reporter: None Present.
199
06/13/2017
APPLICATION of Non-Resident Attorney Daniel L. Rogna to Appear Pro Hac Vice on behalf of Defendant Steadfast Networks LLC (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-20011894) filed by defendant Steadfast Networks LLC.
200
06/14/2017
ORDER GRANTING DEFENDANTS JOINT MOTION TO CONTINUE PRETRIAL AND TRIAL DATES 189 by Judge George H. Wu: Please refer to the Court's order for specifics.
201
06/14/2017
ORDER GRANTING APPLICATION OF NON-RESIDENT ATTORNEY TO APPEAR IN A SPECIFIC CASE PRO HAC VICE Attorney Daniel L. Rogna to Appear Pro Hac Vice on behalf of Defendant Steadfast Networks LLC (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-20011894) 199 on behalf of Steadfast Networks, LLC., designating Paul D. Supnik as local counsel, by Judge George H. Wu.
202
06/20/2017
TRANSCRIPT ORDER as to Defendant Cloudflare, Inc. for Court Smart (CS). Court will contact Karen Beck at karenbeck@quinnemanuel.com with any questions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court recorder.
203
06/20/2017
NOTICE OF LODGING filed with revised proposed order following hearing re MOTION to Compel Productions and Responses re: RFPs 7, 8, 9, 10, 11, 15, 20, 21, 30 and Interrogatories 6, 7, 9, 10 186
1
Proposed Order (Revised)
1 Attachment
204
06/22/2017
REQUEST for ADR Procedure No. 1 filed. Parties request to Appear Before Magistrate for settlement proceedings. Filed by Defendant Steadfast Networks LLC.(O'Brien, Colin)
205
06/20/2017
MINUTES OF Motion Hearing held before Magistrate Judge Alexander F. MacKinnon: The Court orders the declaration of Nolan Schoichet in Support of defenant's Motion to Compel, Attachment #3 to defendants Notice of Motion and Motion to Compel 186 filed UNDER SEAL. Counsel argue. The motion is submitted. Court Recorder: Recorded on Courtsmart.
206
06/23/2017
ORDER/REFERRAL to ADR Procedure No. 1 by Judge George H. Wu. Case ordered to Magistrate Judge for Settlement Conference.
207
06/26/2017
[DOCUMENT ORDERED STRICKEN PER DOC. NO. 209] NOTICE of Association of Counsel associating attorney John P. Flynn, Kevin D. Neal on behalf of Plaintiff ALS Scan, Inc. Filed by Plaintiff ALS Scan, Inc. Modified on 6/28/2017 (mrgo).
208
06/27/2017
NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice of Association of Counsel 207. The following error(s) was found: Other error(s) with document(s) are specified below In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so.
209
06/28/2017
RESPONSE BY THE COURT TO NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS RE: Notice of Association of Counsel 207 by Clerk of Court. The document is stricken. Out of District counsel shall file the appropriate Application to Appear in a Specific Case as a Pro Hac Vice and pay the applicable court fees. (mrgo)
210
06/28/2017
MINUTES (IN CHAMBERS) by Magistrate Judge Alexander F. MacKinnon granting in part 186 Defendant's Motion to Compel Discovery. (See document for details). ALS shall serve the amended interrogatory answers required by this order, shall produce the responsive documents required by this order, and shall provide the verifications required by this order by 7/14/17.
211
07/07/2017
SUPPLEMENT to MOTION to Compel Productions and Responses re: RFPs 7, 8, 9, 10, 11, 15, 20, 21, 30 and Interrogatories 6, 7, 9, 10 186 (Publication) filed by Plaintiff ALS Scan, Inc.
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Exhibit A
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Exhibit B
3
Exhibit C
4
Exhibit D
4 Attachments
212
07/07/2017
SUPPLEMENT Supplemental Memorandum Regarding Publication filed by Defendant Cloudflare, Inc.
1
Declaration of Rachel Kassabian with Supporting Exhibits
1 Attachment
213
07/13/2017
MINUTE ORDER IN CHAMBERS by Magistrate Judge Alexander F. MacKinnon re further granting of Defendant's MOTION to Compel 186. (See document for details).
214
07/10/2017
TRANSCRIPT for proceedings held on 6/20/17, 10:00 AM Court Reporter/Electronic Court Recorder: EXCEPTIONAL REPORTING SERVICES, INC., phone number (361) 949-2988. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 7/31/2017. Redacted Transcript Deadline set for 8/10/2017. Release of Transcript Restriction set for 10/10/2017.
215
07/10/2017
NOTICE OF FILING TRANSCRIPT filed for proceedings 6/20/17, 10:00 AM re Transcript 214 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ls) TEXT ONLY ENTRY
216
07/14/2017
STATEMENT Verification per Court Order filed by Plaintiff ALS Scan, Inc. re: Order on Motion to Compel, 210.
217
07/14/2017
First EX PARTE APPLICATION to Continue time to Comply with 6/28 Order Interrogatory No. 9 from July 14, 2017 to July 24, 2017 Re: Order on Motion to Continue 200 filed by Plaintiff ALS Scan, Inc.
1
Proposed Order
1 Attachment
218
07/15/2017
OPPOSITION re: First EX PARTE APPLICATION to Continue time to Comply with 6/28 Order Interrogatory No. 9 from July 14, 2017 to July 24, 2017 Re: Order on Motion to Continue 200 217 filed by Defendant Cloudflare, Inc.
1
Declaration of Carolyn Homer
1 Attachment
219
07/17/2017
ORDER by Magistrate Judge Alexander F. MacKinnon granting in part 217 plaintiff's EX PARTE APPLICATION for an extension of time to comply with the portion of the Courts Order 210 re Interrogatory No. 9. Plaintiff shall produce the updated spreadsheets as required by 7/21/17. This does not change or extend any dates previously set by the District Judge. Cloudflare's request for attorney's fees is denied.
220
07/18/2017
First STIPULATION to Continue Certain Cutoff Dates Re: Order on Motion to Continue 200 filed by Plaintiff ALS Scan, Inc.
1
Proposed Order
1 Attachment
221
07/19/2017
APPLICATION of Non-Resident Attorney John P. Flynn to Appear Pro Hac Vice on behalf of Plaintiff ALS Scan, Inc. (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-20207869) filed by Plaintiff ALS Scan, Inc.
1
Proposed Order
1 Attachment
222
07/19/2017
APPLICATION of Non-Resident Attorney Kevin D. Neal to Appear Pro Hac Vice on behalf of Plaintiff ALS Scan, Inc. (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-20207912) filed by Plaintiff ALS Scan, Inc.
1
Proposed Order
1 Attachment
223
07/19/2017
Corrected APPLICATION of Non-Resident Attorney John P. Flynn to Appear Pro Hac Vice on behalf of Plaintiff ALS Scan, Inc. (Pro Hac Vice Fee - $325.00 Previously Paid on 7/19/2017, Receipt No. 0973-20207869) filed by Plaintiff ALS Scan, Inc.
1
Proposed Order
1 Attachment
224
07/19/2017
Corrected APPLICATION of Non-Resident Attorney Kevin D. Neal to Appear Pro Hac Vice on behalf of Plaintiff ALS Scan, Inc. (Pro Hac Vice Fee - $325.00 Previously Paid on 7/19/2017, Receipt No. 0973-20207912) filed by Plaintiff ALS Scan, Inc.
1
Proposed Order
1 Attachment
225
07/21/2017
ORDER by Judge George H. Wu: granting 224 Non-Resident Attorney Kevin D. Neal APPLICATION to Appear Pro Hac Vice on behalf of plaintiff ALS Scan, Inc., designating Jay M. Spillane as local counsel. (mrgo)
226
07/21/2017
ORDER by Judge George H. Wu: granting 223 Non-Resident Attorney John P. Flynn APPLICATION to Appear Pro Hac Vice on behalf of plaintiff ALS Scan, Inc., designating Jay M. Spillane as local counsel. (mrgo)
227
07/24/2017
ORDER ON JOINT STIPULATION TO EXTEND CERTAIN CUTOFF DATES AND CONTINUE THE POST-MEDIATION CONFERENCE 220 by Judge George H. Wu. The Court hereby ORDERS: 1. The mediation cutoff shall be extended to September 5, 2017. 2. The post-mediation status conference will take place on September 11, 2017 at 8:30 AM 3. The fact discovery cutoff will be extended to September 15, 2017. Any party who makes their witnesses available for deposition in September will stipulate to a two week review and signature period on deposition transcripts. 4. The expert disclosure/report deadline will be continued to September 15, 2017. 5. The rebuttal expert disclosure/report deadline will be October 6, 2017, notwithstanding the provisions of FRCP R26. 6. No other dates in the case are affected by this order. 7. This order is without prejudice to the rights of any party to make or oppose a motion to continue any other dates in the Court's scheduling order.
228
08/01/2017
ORDER RE SETTLEMENT CONFERENCE. by Magistrate Judge Alexander F. MacKinnon: Settlement Conference set for 8/21/2017 at 10:00AM before Magistrate Judge Alexander F. MacKinnon. (See document for details).
229
08/11/2017
STATEMENT Election of Statutory Damages filed by Plaintiff ALS Scan, Inc. re: Amended Complaint/Petition, 148.
230
08/14/2017
EX PARTE APPLICATION for Protective Order for re 30(b)(6) Deposition Notices filed by Plaintiff ALS Scan, Inc.
1
Proposed Order
1 Attachment
231
08/14/2017
DECLARATION of Jay M. Spillane in support of EX PARTE APPLICATION for Protective Order for re 30(b)(6) Deposition Notices 230 filed by Plaintiff ALS Scan, Inc.
1
Exhibit 1
2
Exhibit 2
3
Exhibit 3
4
Exhibit 4
5
Exhibit 5
6
Exhibit 6
7
Exhibit 7
8
Exhibit 8
9
Exhibit 9
9 Attachments
232
08/15/2017
DECLARATION of Jay M. Spillane in support of EX PARTE APPLICATION for Protective Order for re 30(b)(6) Deposition Notices 230 Supplemental filed by Plaintiff ALS Scan, Inc.
1
Exhibit 10
1 Attachment
233
08/15/2017
OPPOSITION to EX PARTE APPLICATION for Protective Order for re 30(b)(6) Deposition Notices 230 filed by Defendant Steadfast Networks LLC.
234
08/15/2017
DECLARATION of John L. Ambrogi In Opposition to EX PARTE APPLICATION for Protective Order for re 30(b)(6) Deposition Notices 230 filed by Defendant Steadfast Networks LLC.
1
Exhibit 1
2
Exhibit 2
3
Exhibit 3
3 Attachments
235
08/15/2017
MEMORANDUM in Opposition to EX PARTE APPLICATION for Protective Order for re 30(b)(6) Deposition Notices 230 filed by Defendant Cloudflare, Inc.
1
Declaration of Rachel Kassabian
1 Attachment
236
08/15/2017
OPPOSITION to EX PARTE APPLICATION for Protective Order for re 30(b)(6) Deposition Notices 230 filed by Defendant Hivelocity Ventures Corporation.
237
08/16/2017
REPLY in support of EX PARTE APPLICATION for Protective Order for re 30(b)(6) Deposition Notices 230 filed by Plaintiff ALS Scan, Inc.
1
Exhibit 1
2
Exhibit 2
3
Exhibit 3
3 Attachments
238
08/16/2017
MINUTES (IN CHAMBERS) by Magistrate Judge Alexander F. MacKinnon granting in part and denying in part 230 Plaintiff's Ex Parte Application for Protective Order re Rule 30(b)(6) Deposition Notices. (See document for details).
239
08/19/2017
Joint NOTICE OF MOTION AND MOTION to Continue Pretrial and Trial Dates from a trial start date of 1/9/2018 to a trial start date of 4/10/2018 filed by Defendant Cloudflare, Inc. Motion set for hearing on 8/24/2017 at 08:30 AM before Judge George H. Wu.
1
Memorandum in Support of Continuance
2
Declaration of Rachel Kassabian
3
Declaration of John Ambrogi
4
Proposed Order
4 Attachments
240
08/21/2017
TEXT ONLY ENTRY - IN CHAMBERS: by Judge George H. Wu: Counsel for Defendants' failed to comply with Local Rule 6. For that reason, DEFENDANTS MOTION TO CONTINUE PRETRIAL AND TRIAL DATES 239 previously scheduled for 08/24/2017 is CONTINUED to 9/18/2017 at 08:30 AM before Judge George H. Wu. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (jag) TEXT ONLY ENTRY
241
08/21/2017
EX PARTE APPLICATION to Shorten Time for Hearing on re Joint NOTICE OF MOTION AND MOTION to Continue Pretrial and Trial Dates from a trial start date of 1/9/2018 to a trial start date of 4/10/2018 239 to 8/24/2017 filed by Defendant Cloudflare, Inc.
1
Memorandum
2
Declaration of John Ambrogi
3
Proposed Order
3 Attachments
242
08/22/2017
Opposition re: EX PARTE APPLICATION to Shorten Time for Hearing on re Joint NOTICE OF MOTION AND MOTION to Continue Pretrial and Trial Dates from a trial start date of 1/9/2018 to a trial start date of 4/10/2018 239 to 8/24/2017 241 filed by Plaintiff ALS Scan, Inc.
243
08/22/2017
MINUTES IN CHAMBERS - COURT ORDER by Judge George H. Wu. Defendant's Motion to Continue Pretrial and Trial Dates is set for hearing on September 7, 2017 at 8:30 AM Any Opposition will be due by noon on August 29, 2017 and Reply will be filed by noon on September 1, 2017. Defendants' Ex Parte Application filed on August 24, 2017 241 is deemed MOOT.
244
08/21/2017
MINUTES OF Settlement Conference held before Magistrate Judge Alexander F. MacKinnon: Settlement is reached between plaintiff and defendant Hivelocity. (See document for further details). Recorded on Courtsmart (Partially Under Seal).
245
08/22/2017
NOTICE OF MOTION AND MOTION to Compel Discovery filed by Defendant Cloudflare, Inc. Motion set for hearing on 9/12/2017 at 10:00 AM before Magistrate Judge Alexander F. MacKinnon.
1
Memorandum Joint Stipulation on Cloudflare's Motion to Compel
2
Declaration of Rachel Kassabian with Exhibits
3
Declaration of Nolan Schoichet with Exhibits
4
Declaration of Jay Spillane
5
Exhibit 1 to Spillane Declaration
6
Exhibit 2 to Spillane Declaration
7
Exhibit 3 to Spillane Declaration
8
Exhibit 4 to Spillane Declaration
9
Exhibit 5 to Spillane Declaration
9 Attachments
246
08/29/2017
Opposition re: Joint NOTICE OF MOTION AND MOTION to Continue Pretrial and Trial Dates from a trial start date of 1/9/2018 to a trial start date of 4/10/2018 239 filed by Plaintiff ALS Scan, Inc.
1
Declaration of Sarah Walsh
2
Declaration of Jay M. Spillane
2 Attachments
247
08/29/2017
MINUTE ORDER IN CHAMBERS by Magistrate Judge Alexander F. MacKinnon: A Telephone Conference re discovery is set for 8/31/2017 at 10:00AM before Magistrate Judge Alexander F. MacKinnon. (See attached for call-in information).
248
08/29/2017
SUPPLEMENT to MOTION to Compel Discovery 245 pursuant to L.R. 37-2.3 filed by Defendant Cloudflare, Inc.
249
08/31/2017
MINUTES OF Telephone Conference held before Magistrate Judge Alexander F. MacKinnon: Telephone conference re deposition schedule held. Recorded on Courtsmart.
250
09/01/2017
REPLY in support of Joint NOTICE OF MOTION AND MOTION to Continue Pretrial and Trial Dates from a trial start date of 1/9/2018 to a trial start date of 4/10/2018 239 filed by Defendant Cloudflare, Inc.
1
Declaration (Supplemental) of Rachel Kassabian
2
Declaration (Supplemental) of John Ambrogi
2 Attachments
251
09/08/2017
Joint STIPULATION to Continue Trial from January 9, 2018 to April 24, 2018 filed by Defendant Cloudflare, Inc.
252
09/07/2017
MINUTES OF DEFENDANTS' JOINT MOTION TO CONTINUE PRETRIAL AND TRIAL DATES 239 held before Judge George H. Wu: Court and counsel confer. The Tentative circulated and attached hereto, is adopted as the Courts Final Ruling. Defendants' motion is GRANTED. Parties will confer and file an updated proposed scheduling order by noon on September 11, 2017. The Post-Mediation Status Conference set for September 11, 2017 is TAKEN OFF-CALENDAR. Settlement is not reached. Court Reporter: Katie Thibodeaux.
253
09/08/2017
NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Stipulation to Continue 251. The following error(s) was/were found: Proposed Document was not submitted as separate attachment. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so.
254
09/08/2017
RESPONSE BY THE COURT TO NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS RE: Stipulation to Continue 251 by Judge George H. Wu. The document is accepted as filed. Counsel shall lodge a Proposed Order to the Joint Stipulation on or before noon on September 11, 2017.
255
09/08/2017
NOTICE OF LODGING filed with proposed order on Joint Stipulation to continue trial dates following the Court's order on Defendants' Motion to Continue re Response By Court to Notice of Deficiencies (G-112B) - optional html form, 254
1
Proposed Order
1 Attachment
256
09/08/2017
ORDER CONTINUING PRETRIAL AND TRIAL DATES by Judge George H. Wu: Final Pretrial Conference set for 4/12/2018 at 08:30 AM; Jury Trial set for 4/24/2017 at 09:00 AM Please refer to the Court's order for additional information.
257
09/12/2017
MINUTES OF Defendant, Cloudflare Inc.'s Motion to Compel Discovery [ECF # 245] held before Magistrate Judge Alexander F. MacKinnon. Case called and appearances made. The Court and counsel discuss defendant Cloudflare's motion to compel discovery. Rulings and agreements of the parties are put on the record regarding certain issues. Other issues are reserved, pending further discussions between the parties. If the parties are unable to resolve the remaining issues, defendant Cloudflare may file a brief updating the Court on these issues, and plaintiff may then file a response within seven days. Court Recorder: CS 09/12/2017. (sbou)
258
09/12/2017
TRANSCRIPT ORDER as to Defendant Cloudflare, Inc. for Court Reporter. Court will contact Cheryl Morones at cherylmorones@quinnemanuel.com with any questions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter.
259
09/12/2017
TRANSCRIPT ORDER as to Defendant Cloudflare, Inc. for Court Smart (CS). Court will contact Cheryl Morones at cherylmorones@quinnemanuel.com with any questions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court recorder.
260
09/15/2017
TRANSCRIPT for proceedings held on 9/7/17 8:55 AM Court Reporter/Electronic Court Recorder: Katie Thibodeaux, CSR, RPR, CRR, phone number www.katiethibodeaux.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 10/6/2017. Redacted Transcript Deadline set for 10/16/2017. Release of Transcript Restriction set for 12/14/2017.
261
09/15/2017
TRANSCRIPT for proceedings held on 6/1/17 8:47 AM Court Reporter/Electronic Court Recorder: Katie Thibodeaux, CSR, RPR, CRR, phone number www.katiethibodeaux.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 10/6/2017. Redacted Transcript Deadline set for 10/16/2017. Release of Transcript Restriction set for 12/14/2017.
262
09/15/2017
TRANSCRIPT for proceedings held on 5/25/17 9:29 AM Court Reporter/Electronic Court Recorder: Katie Thibodeaux, CSR, RPR, CRR, phone number www.katiethibodeaux.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 10/6/2017. Redacted Transcript Deadline set for 10/16/2017. Release of Transcript Restriction set for 12/14/2017.
263
09/15/2017
NOTICE OF FILING TRANSCRIPT filed for proceedings 9/7/17 0:55 am; 6/1/17 8:47 am; 5/25/17 9:29 am re Transcript 260, 262, 261 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. TEXT ONLY ENTRY
264
09/18/2017
REQUEST to Dismiss Defendant Hivelocity Ventures Corporation filed by Plaintiff ALS Scan, Inc.
1
Proposed Order
1 Attachment
265
09/19/2017
NOTICE OF MOTION AND MOTION for Protective Order for Deposition of Cloudflare CEO filed by Defendant Cloudflare, Inc. Motion set for hearing on 10/10/2017 at 10:00 AM before Magistrate Judge Alexander F. MacKinnon.
1
Memorandum -Joint Stipulation on Cloudflare's Motion for Protective Order
2
Declaration of Rachel Kassabian ISO Cloudflare's Motion
3
Declaration of Matthew Prince ISO Cloudflare's Motion
4
Declaration of Jay Spillane in Opposition to Cloudflare's Motion
5
Exhibit s A-H to the Spillane Declaration
6
Proposed Order
6 Attachments
266
09/19/2017
ORDER GRANTING REQUEST FOR DISMISSAL OF DEFENDANT HIVELOCITY VENTURES CORPORATION by Judge George H. Wu: Granting 264 REQUEST to Dismiss Defendant Hivelocity Ventures Corporation. Terminating Hivelocity Ventures Corporation (a Florida corporation). Please refer to the Court's order for additional information.
267
09/20/2017
TRANSCRIPT for proceedings held on 9/12/17 10:36 AM Court Reporter/Electronic Court Recorder: EXCEPTIONAL REPORTING SERVICES, INC, phone number (361) 949-2988. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 10/11/2017. Redacted Transcript Deadline set for 10/23/2017. Release of Transcript Restriction set for 12/19/2017.
268
09/20/2017
NOTICE OF FILING TRANSCRIPT filed for proceedings 9/12/17 10:36 AM re Transcript 267 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ha) TEXT ONLY ENTRY
269
09/26/2017
SUPPLEMENT to MOTION for Protective Order for Deposition of Cloudflare CEO 265 filed by Defendant Cloudflare, Inc.
1
Declaration (Supplemental) of Rachel Kassabian
2
Declaration (Supplemental) of Matthew Prince
2 Attachments
270
10/05/2017
MINUTE ORDER IN CHAMBERS by Magistrate Judge Alexander F. MacKinnon: On the Court's own motion, the hearing noticed for 10/10/17 on plaintiff's Motion for Protective Order 265, is VACATED. No appearances are necessary. The matter is submitted.
271
10/05/2017
SUPPLEMENT to MOTION to Compel Discovery 245 following 9/12/2017 hearing 257 and further meet-and-confer efforts filed by Defendant Cloudflare, Inc.
1
Declaration (Supplemental) of Rachel Kassabian with Exhibits
1 Attachment
272
10/06/2017
MINUTES (IN CHAMBERS) by Magistrate Judge Alexander F. MacKinnon granting in part and denying in part 265 Defendant's Motion for Protective Order precluding the deposition of its CEO Matthew Prince. (See document for details).
273
10/16/2017
Notice of Appearance or Withdrawal of Counsel: for attorney Shahrokh Sheik counsel for Defendant Hivelocity Ventures Corporation. Shahrokh Sheik will no longer receive service of documents from the Clerks Office for the reason indicated in the G-123 Notice. Filed by Defendant Hivelocity Ventures Corporation.
274
10/16/2017
Notice of Appearance or Withdrawal of Counsel: for attorney Shahrokh Sheik counsel for Defendant Hivelocity Ventures Corporation. Tammy Wu will no longer receive service of documents from the Clerks Office for the reason indicated in the G-123 Notice. Filed by Defendant Hivelocity Ventures Corporation.
275
10/16/2017
Notice of Appearance or Withdrawal of Counsel: for attorney John Lewis Holcomb, Jr counsel for Defendant Hivelocity Ventures Corporation. John L. Holcomb, Jr. will no longer receive service of documents from the Clerks Office for the reason indicated in the G-123 Notice. Filed by Defendant Hivelocity Ventures Corporation.
276
10/18/2017
NOTICE OF LODGING filed with Proposed Order re MOTION to Compel Discovery 245
1
Proposed Order regarding Cloudflare's Pending Motion to Compel (Dkt. 245)
1 Attachment
277
10/18/2017
Opposition re: MOTION to Compel Discovery 245 (Second Cloudflare Brief) filed by Plaintiff ALS Scan, Inc.
278
10/19/2017
MINUTE ORDER IN CHAMBERS by Magistrate Judge Alexander F. MacKinnon: Telephone Conference set for 10/20/2017 at 11:00AM before Magistrate Judge Alexander F. MacKinnon. (See document for call-in information.)
279
10/20/2017
MINUTES OF Telephone Conference re discovery matters held before Magistrate Judge Alexander F. MacKinnon: Rulings by the Court and agreements by the parties were placed on the record. Recorded on Courtsmart.
280
10/23/2017
TRANSCRIPT ORDER as to Defendant Cloudflare, Inc. for Court Smart (CS). Court will contact Karen Beck at karenbeck@quinnemanuel.com with any questions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court recorder.
281
10/24/2017
Opposition re: MOTION to Compel Discovery 245 Supplemental Spillane Declaration filed by Plaintiff ALS Scan, Inc.
282
10/24/2017
APPLICATION to file document Exhibits P and Q, containing provisionally designated confidential ALS deposition testimony to the Second Supplemental Kassabian Declaration in Support of Cloudflare's Motion to Compel under seal filed by Defendant Cloudflare, Inc.
1
Declaration of Rachel Kassabian - Omitting Exhibits P and Q
2
Proposed Order regarding confidentiality designations for Exhibits P and Q
2 Attachments
283
10/24/2017
SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Exhibits P and Q, containing provisionally designated confidential ALS deposition testimony to the Second Supplemental Kassabian Declaration in Support of Cloudflare's Motion to Compel under seal 282 filed by Defendant Cloudflare, Inc.
1
Declaration of Rachel Kassabian - Containing Exhibits P and Q
1 Attachment
284
10/24/2017
PROOF OF SERVICE filed by Defendant Cloudflare, Inc., re Sealed Declaration in SupportDeclaration, 283 Exhibits P and Q (containing provisionally designated confidential ALS deposition testimony) to the Second Supplemental Kassabian Declaration in Support of Cloudflare's Motion to Compel served on 10/24/2017.
285
10/26/2017
MINUTES (IN CHAMBERS) by Magistrate Judge Alexander F. MacKinnon granting in part and denying in part 245 Defendant's Motion to Compel. The discovery required by this order shall be provided by ALS no later than 11/6/17. (See document for details).
286
10/31/2017
TRANSCRIPT for proceedings held on 10/20/2017. Court Reporter/Electronic Court Recorder: Exceptional Reporting Services, Inc., phone number (361) 949-2988. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 11/21/2017. Redacted Transcript Deadline set for 12/1/2017. Release of Transcript Restriction set for 1/29/2018.
287
10/31/2017
NOTICE OF FILING TRANSCRIPT filed for proceedings 10/20/2017 re Transcript 286 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (at) TEXT ONLY ENTRY
288
11/01/2017
MINUTES (IN CHAMBERS) by Magistrate Judge Alexander F. MacKinnon GRANTING 282 Defendant Cloudflare's APPLICATION to File Exhibits P and Q Under Seal in Connection with Its' Second Supplemental Kassabian Declaration.
289
11/02/2017
REQUEST TO SUBSTITUTE ATTORNEY Andrew P. Bridges of Fenwick & West LLP in place of attorney Rachel H. Kassabian of Quinn Emanuel Urquhart & Sullivan LLP filed by Defendant Cloudflare, Inc.
1
Proposed Order
1 Attachment
290
11/06/2017
ORDER GRANTING REQUEST TO SUBSTITUTE ATTORNEY Andrew Bridges in place of attorneys Rachel Herrick Kassabian, Caroyln H. Homer, Mark Thomas Gray, filed by Defendant Cloudflare, Inc. GRANTED. (cr) Modified on 11/6/2017
291
11/10/2017
NOTICE of Appearance filed by attorney Andrew P Bridges on behalf of Defendant Cloudflare, Inc. (Attorney Andrew P Bridges added to party Cloudflare, Inc.(pty:dft))
292
11/10/2017
NOTICE of Appearance filed by attorney Jedediah Wakefield on behalf of Defendant Cloudflare, Inc. (Attorney Jedediah Wakefield added to party Cloudflare, Inc.(pty:dft))
293
11/10/2017
NOTICE of Appearance filed by attorney Armen Nercess Nercessian on behalf of Defendant Cloudflare, Inc. (Attorney Armen Nercess Nercessian added to party Cloudflare, Inc.(pty:dft))
294
11/10/2017
NOTICE of Appearance filed by attorney Sapna S Mehta on behalf of Defendant Cloudflare, Inc. (Attorney Sapna S Mehta added to party Cloudflare, Inc.(pty:dft))
295
11/14/2017
NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice of Appearance 294, Notice of Appearance 292, Notice of Appearance 293. The following error(s) was/were found: Incorrect event selected. Correct event to be used is: Notice of Appearance or Withdrawal G123. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so.
296
12/01/2017
NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Claims and Defenses re Defendant Steadfast Networks LLC filed by Plaintiff ALS Scan, Inc. Motion set for hearing on 1/4/2018 at 08:30 AM before Judge George H. Wu.
1
Proposed Order Order
2
Proposed Order Separate Statement
2 Attachments
297
12/01/2017
MEMORANDUM in Support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Claims and Defenses re Defendant Steadfast Networks LLC 296 filed by Plaintiff ALS Scan, Inc.
298
12/01/2017
NOTICE OF LODGING OF DEPOSITION OF KARL ZIMMERMAN re NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Claims and Defenses re Defendant Steadfast Networks LLC 296 filed by Plaintiff ALS Scan, Inc.
299
12/01/2017
DECLARATION of Steve Easton in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Claims and Defenses re Defendant Steadfast Networks LLC 296 filed by Plaintiff ALS Scan, Inc.
1
Exhibit Notice of Manual Filing
1 Attachment
300
12/01/2017
DECLARATION of Eric Penn in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Claims and Defenses re Defendant Steadfast Networks LLC 296 filed by Plaintiff ALS Scan, Inc.
1
Exhibit 1
2
Exhibit 2
3
Exhibit 3
4
Exhibit 4
5
Exhibit 5
6
Exhibit 6
7
Exhibit 7
8
Exhibit 8
9
Exhibit 9
10
Exhibit 10
11
Exhibit 11
12
Exhibit 12
13
Exhibit 13
14
Exhibit 14
15
Exhibit 15
16
Exhibit 16
17
Exhibit 17
18
Exhibit 18
19
Exhibit 19
20
Exhibit 20
21
Exhibit 21
22
Exhibit 22
22 Attachments
301
12/01/2017
DECLARATION of Jay M. Spillane in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Claims and Defenses re Defendant Steadfast Networks LLC 296 filed by Plaintiff ALS Scan, Inc.
1
Exhibit 1
2
Exhibit 2
3
Exhibit 3
4
Exhibit 4
5
Exhibit 5
6
Exhibit 6
6 Attachments
302
12/01/2017
DECLARATION of Sarah Walsh in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Claims and Defenses re Defendant Steadfast Networks LLC 296 filed by Plaintiff ALS Scan, Inc.
303
12/14/2017
OPPOSITION to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Claims and Defenses re Defendant Steadfast Networks LLC 296 filed by Defendant Steadfast Networks LLC.
1
Appendix Statement of Genuine Issues of Fact
2
Declaration of Kevin Stange
3
Declaration of Karl Zimmerman
4
Declaration of John Ambrogi
5
Exhibit A to Declaration of John Ambrogi
6
Exhibit B to Declaration of John Ambrogi
7
Exhibit C to Declaration of John Ambrogi
8
Exhibit D to Declaration of John Ambrogi
9
Exhibit E to Declaration of John Ambrogi
10
Exhibit F to Declaration of John Ambrogi
11
Exhibit G to Declaration of John Ambrogi
12
Exhibit H to Declaration of John Ambrogi
13
Exhibit I to Declaration of John Ambrogi
14
Exhibit J to Declaration of John Ambrogi
15
Exhibit K to Declaration of John Ambrogi
16
Exhibit L to Declaration of John Ambrogi
17
Exhibit M to Declaration of John Ambrogi
18
Exhibit N to Declaration of John Ambrogi
19
Exhibit O to Declaration of John Ambrogi
20
Exhibit P to Declaration of John Ambrogi
21
Exhibit Q to Declaration of John Ambrogi
22
Exhibit R to Declaration of John Ambrogi
23
Exhibit S to Declaration of John Ambrogi
24
Exhibit T to Declaration of John Ambrogi
25
Exhibit U to Declaration of John Ambrogi
25 Attachments
304
12/14/2017
APPLICATION to file document under seal filed by Defendant Steadfast Networks LLC.
1
Proposed Order
2
Redacted Document Defendant's Memorandum in Opposition to Plaintiff's Motion for Partial Summary Judgment
3
Redacted Document Declaration of John Ambrogi
4
Redacted Document Exhibit A to Declaration of John Ambrogi
4 Attachments
305
12/14/2017
SEALED DECLARATION IN SUPPORT OF APPLICATION to file document under seal 304 filed by Defendant Steadfast Networks LLC.
1
Unredacted Document Defendant's Memorandum in Opposition to Plaintiff's Motion for Partial Summary Judgment
2
Unredacted Document Declaration of John Ambrogi with Exhibit A
2 Attachments
306
12/18/2017
ORDER GRANTING STEADFAST NETWORKS LLC'S APPLICATION TO FILE DOCUMENTS UNDER SEAL by Judge George H. Wu: Granting 304 APPLICATION to Seal Document. Please refer to the Court's order for details.
307
12/19/2017
SEALED DOCUMENT MEMORANDUM IN OPPOSITION TO PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT re Order on Motion for Leave to File Document Under Seal 306 filed by Defendant Steadfast Networks LLC.
1
Declaration John Ambrogi Declaration with Exhibit A)(O'Brien, Colin
1 Attachment
308
12/21/2017
REPLY in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Claims and Defenses re Defendant Steadfast Networks LLC 296 filed by Plaintiff ALS Scan, Inc.
309
12/21/2017
DECLARATION of Eric Penn in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Claims and Defenses re Defendant Steadfast Networks LLC 296 filed by Plaintiff ALS Scan, Inc.
310
12/27/2017
TEXT ENTRY ONLY: [IN CHAMBERS] ORDER by Judge George H. Wu. The Court, on its own motion hereby continues the motion for partial summary judgment as to claims and defenses (Doc. No. 296) from January 1, 2018 at 8:30 AM to January 18, 2018 at 8:30 AM Parties are ORDERED to appear on new date and time specified herein. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ab) TEXT ONLY ENTRY
311
01/09/2018
Joint REQUEST for Hearing By Telephone Conference Regarding Summary Judgment Scheduling On Behalf of Defendants Cloudflare, Inc. and Steadfast Networks LLC filed by Defendant Cloudflare, Inc. Request set for hearing on 1/11/2018 at 08:30 AM before Judge George H. Wu.
1
Declaration of Andrew P. Bridges In Support of Defendants Cloudflare, Inc. and Steadfast Networks LLC's Request for Telephone Conference Regarding Summary Judgment Scheduling
2
Proposed Order Granting Defendants Cloudflare, Inc. and Steadfast Networks LLC's Request for Telephone Conference Regarding Summary Judgment Scheduling
2 Attachments
312
01/10/2018
ORDER GRANTING DEFENDANT CLOUDFLARE, INC. AND STEADFAST NETWORKS, LLC'S JOINTREQUEST FOR A TELEPHONE CONFERENCE REGARDING SUMMARY JUDGMENT SCHEDULING 311 by Judge George H. Wu: The Court GRANTS the request and ORDERS the parties to participate in a telephone conference on January 11, 2018 at 11:00 AM Counsel for Defendant Cloudflare, Inc., will provide and email the court clerk and other counsel in this matter with a call-in number for the hearing at 11:00 AM.
313
01/11/2018
MINUTES OF Telephone Conference held before Judge George H. Wu:Court and counsel confer. The Court will allow any motion for summary judgment to be filed as long as the requirements of Local Rule 6 are met. Defendant Steadfasts Motion for Summary Judgment 296, set for January 18, 2018, is continued to February 1, 2018 at 8:30 AM Defendant Steadfasts amended opposition to Plaintiffs statement of undisputed facts will be filed by January 16, 2018. Plaintiff ALS is to file an amended reply to Defendants amended opposition and additional facts by close of business January 19, 2018. Court Reporter: Katie Thibodeaux.
314
01/11/2018
AMENDED MINUTES held before Judge George H. Wu re: Telephone Conference, 313. Defendant Steadfast's Motion for Summary Judgment 296, set for January 18, 2018, is continued to February 1, 2018 at 8:30 AM Defendant Steadfast's amended opposition to Plaintiff's motion for summary judgement will be amended to reflect the paragraphs (starting at No. 44) that will be in the Defendant Steadfast Network's statement of additional undisputed facts by January 16, 2018. Only the citations will be amended and nothing further. Plaintiff ALS is to file an amended reply to Defendant's amended opposition and additional facts by close of business January 19, 2018. (mrgo)
315
01/16/2018
APPLICATION to file document under seal filed by Defendant Steadfast Networks LLC.
1
Declaration of Colin O'Brien
2
Exhibit A
3
Exhibit B
4
Proposed Order)(O'Brien, Colin
4 Attachments
316
01/16/2018
SEALED DOCUMENT re APPLICATION to file document under seal 315, Telephone Conference, Set/Reset Motion Hearing and R&R Deadlines, 313 filed by Defendant Steadfast Networks LLC.
1
Declaration of Colin O'Brien
2
Exhibit A
3
Exhibit B)(O'Brien, Colin
3 Attachments
317
01/18/2018
ORDER GRANTING STEADFAST NETWORKS LLC'S APPLICATION TO FILE DOCUMENTS UNDER SEAL by Judge George H. Wu re: granting 315 APPLICATION to Seal Document. (See document for details) (mrgo)
318
01/18/2018
SEALED APPLICATION re Order on Motion for Leave to File Document Under Seal 317 filed by Defendant Steadfast Networks LLC.
1
Exhibit A
2
Exhibit B)(O'Brien, Colin
2 Attachments
319
01/19/2018
RESPONSE IN SUPPORT of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Claims and Defenses re Defendant Steadfast Networks LLC 296 Steadfast's Statement of Genuine Issues filed by Plaintiff ALS Scan, Inc.
320
01/19/2018
Objections in support of re: NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Claims and Defenses re Defendant Steadfast Networks LLC 296 Steadfast's Statement of Genuine Issues filed by Plaintiff ALS Scan, Inc.
321
01/26/2018
APPLICATION to file document Reply to Additional Statement of Facts under seal filed by Defendant Steadfast Networks LLC.
1
Declaration of Colin O'Brien
2
Redacted Document
3
Proposed Order)(O'Brien, Colin
3 Attachments
322
01/26/2018
SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Reply to Additional Statement of Facts under seal 321 filed by Defendant Steadfast Networks LLC.
1
Declaration of Colin O'Brien
2
Unredacted Document)(O'Brien, Colin
2 Attachments
323
01/29/2018
TEXT ONLY ENTRY - IN CHAMBERS: by Judge George H. Wu: The Court, on its own motion, CONTINUES PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANT STEADFAST NETWORKS, LLC 296 previously scheduled for 02/01/2018 to 2/5/2018 at 08:30 AM before Judge George H. Wu. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (jag) TEXT ONLY ENTRY
324
01/30/2018
NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Third Amended Complaint against Cloudflare Inc. filed by Plaintiff ALS Scan, Inc. Motion set for hearing on 3/5/2018 at 08:30 AM before Judge George H. Wu.
1
Proposed Order Separate Statement
2
Proposed Order
2 Attachments
325
01/30/2018
MEMORANDUM in Support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Third Amended Complaint against Cloudflare Inc. 324 filed by Plaintiff ALS Scan, Inc.
326
01/30/2018
DECLARATION of Sarah Walsh in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Third Amended Complaint against Cloudflare Inc. 324 filed by Plaintiff ALS Scan, Inc.
327
01/30/2018
DECLARATION of Jay M. Spillane in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Third Amended Complaint against Cloudflare Inc. 324 filed by Plaintiff ALS Scan, Inc.
1
Exhibit A
2
Exhibit B
3
Exhibit C
4
Exhibit D
5
Exhibit E
6
Exhibit F
7
Exhibit G
8
Exhibit H
9
Exhibit I
10
Exhibit J
11
Exhibit K
12
Exhibit L
13
Exhibit M
14
Exhibit N
15
Exhibit O
15 Attachments
328
01/30/2018
DECLARATION of Eric Penn in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Third Amended Complaint against Cloudflare Inc. 324 filed by Plaintiff ALS Scan, Inc.
329
01/30/2018
DECLARATION of Steve Easton in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Third Amended Complaint against Cloudflare Inc. 324 filed by Plaintiff ALS Scan, Inc.
1
Exhibit A
1 Attachment
330
01/30/2018
EXHIBIT Easton Exs. - Manual Filing to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Third Amended Complaint against Cloudflare Inc. 324 filed by Plaintiff ALS Scan, Inc.
331
01/30/2018
EXHIBIT Penn Exs. - Manual Filing to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Third Amended Complaint against Cloudflare Inc. 324 filed by Plaintiff ALS Scan, Inc.
332
01/31/2018
ORDER GRANTING STEADFAST NETWORKS LLC'S APPLICATION TO FILE DOCUMENTS UNDER SEAL by Judge George H. Wu re: 321 APPLICATION to Seal Document. (mrgo)
333
01/31/2018
SEALED DOCUMENT Reply to Additional Statement of Facts re Order on Motion for Leave to File Document Under Seal 332 filed by Defendant Steadfast Networks LLC.(O'Brien, Colin)
334
01/31/2018
APPLICATION to file document Spillane Decl. Ex. A Doc 327-1 under seal filed by Plaintiff ALS Scan, Inc.
1
Proposed Order
1 Attachment
335
01/31/2018
EXHIBIT B to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Third Amended Complaint against Cloudflare Inc. 324 Easton Decl. Doc. 329 Ex. B filed by Plaintiff ALS Scan, Inc.
336
02/01/2018
NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Exhibit to Motion 330, Exhibit to Motion 331. The following error(s) was/were found: Incorrect event selected. Correct event to be used is: Notices > Manual Filing. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (mrgo)
337
02/01/2018
NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: APPLICATION to file document Spillane Decl. Ex. A Doc 327-1 under seal 334, Exhibit to Motion 335. The following error(s) was/were found: Title page is missing. Other error(s) with document(s): Please refer to L.R. 79 for the proper e-filing procedure. Or go to our Court's website at www.cacd.uscourts.gov, go to the E-Filing tab, click on Sealed Documents. There should be 2 docket entries made: 1) Application (as main document), Proposed order (as 1st attachment), & Redacted Document (as 2nd attachment); 2) Sealed Declaration in Support (as main document) & Unredacted Document (as 1st attachment). Title page is missing on doc. no. 335. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (mrgo)
338
02/01/2018
NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to PLAINTIFF ALS SCAN, INC. RE: DMCA filed by Defendant Steadfast Networks LLC. Motion set for hearing on 3/12/2018 at 08:30 AM before Judge George H. Wu.
1
Proposed Order) (O'Brien, Colin
1 Attachment
339
02/01/2018
MEMORANDUM in Support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to PLAINTIFF ALS SCAN, INC. RE: DMCA 338 filed by Defendant Steadfast Networks LLC.
1
Supplement State of Uncontroverted Facts)(O'Brien, Colin
1 Attachment
340
02/01/2018
DECLARATION of John L. Ambrogi in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to PLAINTIFF ALS SCAN, INC. RE: DMCA 338 filed by Defendant Steadfast Networks LLC.
1
Exhibit A
2
Exhibit B
3
Exhibit C
4
Exhibit D
5
Exhibit E
6
Exhibit F
7
Exhibit G
8
Exhibit H)(O'Brien, Colin
8 Attachments
341
02/01/2018
DECLARATION of Kevin Stange in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to PLAINTIFF ALS SCAN, INC. RE: DMCA 338 filed by Defendant Steadfast Networks LLC. (O'Brien, Colin)
342
02/01/2018
DECLARATION of Karl Zimmerman in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to PLAINTIFF ALS SCAN, INC. RE: DMCA 338 filed by Defendant Steadfast Networks LLC.
1
Exhibit A
2
Exhibit B
3
Exhibit C)(O'Brien, Colin
3 Attachments
343
02/01/2018
NOTICE OF MOTION AND MOTION for Summary Judgment as to PLAINTIFF ALS SCAN, INC.'S COUNTS II, III, & VI filed by Defendant Steadfast Networks LLC. Motion set for hearing on 3/12/2018 at 08:30 AM before Judge George H. Wu.
1
Proposed Order) (O'Brien, Colin
1 Attachment
344
02/01/2018
MEMORANDUM in Support of NOTICE OF MOTION AND MOTION for Summary Judgment as to PLAINTIFF ALS SCAN, INC.'S COUNTS II, III, & VI 343 filed by Defendant Steadfast Networks LLC.
1
Supplement Statement of Uncontroverted Facts)(O'Brien, Colin
1 Attachment
345
02/01/2018
DECLARATION of John L. Ambrogi in support of NOTICE OF MOTION AND MOTION for Summary Judgment as to PLAINTIFF ALS SCAN, INC.'S COUNTS II, III, & VI 343 filed by Defendant Steadfast Networks LLC.
1
Exhibit A
2
Exhibit B
3
Exhibit C
4
Exhibit D
5
Exhibit E
6
Exhibit F
7
Exhibit G
8
Exhibit H
9
Exhibit I)(O'Brien, Colin
9 Attachments
346
02/01/2018
DECLARATION of Karl Zimmerman in support of NOTICE OF MOTION AND MOTION for Summary Judgment as to PLAINTIFF ALS SCAN, INC.'S COUNTS II, III, & VI 343 filed by Defendant Steadfast Networks LLC.
1
Exhibit A
2
Exhibit B
3
Exhibit C)(O'Brien, Colin
3 Attachments
347
02/01/2018
NOTICE OF MOTION AND MOTION for Summary Judgment filed by Defendant Cloudflare, Inc. Motion set for hearing on 3/5/2018 at 08:30 AM before Judge George H. Wu.
1
Memorandum in Support of Cloudflare's Motion for Summary Judgment [Redacted Public Version]
1 Attachment
348
02/01/2018
NOTICE OF LODGING filed re NOTICE OF MOTION AND MOTION for Summary Judgment 347
1
Statement of Uncontroverted Facts and Conclusions of Law
2
Proposed Judgment
2 Attachments
349
02/01/2018
APPLICATION to file document in Support of Motion for Summary Judgment under seal filed by Defendant Cloudflare, Inc.
1
Proposed Order
2
Redacted Document [Memorandum in Support of Motion for Summary Judgment]
3
Redacted Document [Decl of Andrew Bridges in Support of Motion for Summary Judgment]
4
Redacted Document [Exhibit 5 to Decl of Andrew Bridges]
5
Redacted Document [Decl of Justin Paine in Support of Motion for Summary Judgment]
5 Attachments
350
02/01/2018
SEALED DECLARATION IN SUPPORT OF APPLICATION to file document in Support of Motion for Summary Judgment under seal 349 filed by Defendant Cloudflare, Inc.
1
Declaration of Justin Paine in Support of Application to Seal
2
Unredacted Document [Confidential Memorandum in Support of Summary Judgment]
3
Unredacted Document [Confidential Decl of Andrew Bridges in Support of Motion for Summary Judgment]
4
Exhibit 2 to the Decl of Andrew Bridges
5
Exhibit 5 to the Decl of Andrew Bridges
6
Exhibit 6 to the Decl of Andrew Bridges
7
Exhibit 12 to the Decl of Andrew Bridges
8
Unredacted Document [Decl of Justin Paine in Support of Motion for Summary Judgment]
9
Exhibit 25 to Decl of Justin Paine
9 Attachments
351
02/01/2018
DECLARATION of Albert Lee Guinn III in Support of NOTICE OF MOTION AND MOTION for Summary Judgment 347 filed by Defendant Cloudflare, Inc.
1
Exhibit A
2
Exhibit B
3
Exhibit C
4
Exhibit D
5
Exhibit E
6
Exhibit F
7
Declaration G
8
Exhibit H
8 Attachments
352
02/01/2018
DECLARATION of Nick Sullivan in Support of NOTICE OF MOTION AND MOTION for Summary Judgment 347 filed by Defendant Cloudflare, Inc.
353
02/01/2018
DECLARATION of Justin Paine in Support of NOTICE OF MOTION AND MOTION for Summary Judgment 347 filed by Defendant Cloudflare, Inc.
1
Exhibit 1
2
Exhibit 2
3
Exhibit 3
4
Declaration 4
5
Exhibit 5
6
Exhibit 6
7
Exhibit 7
8
Exhibit 8
9
Exhibit 9
10
Exhibit 10
11
Exhibit 11
12
Exhibit 12
13
Exhibit 13
14
Exhibit 14
15
Exhibit 15
16
Exhibit 16
17
Exhibit 17
18
Exhibit 18
19
Exhibit 19
20
Exhibit 20
21
Exhibit 21
22
Exhibit 22
23
Declaration 23
24
Exhibit 24
25
Exhibit 25
25 Attachments
354
02/01/2018
DECLARATION of Andrew P. Bridges in Support of NOTICE OF MOTION AND MOTION for Summary Judgment 347 filed by Defendant Cloudflare, Inc.