Case 3:21-cv-03778-CRB Document 31 Filed 11/19/21 Page 1 of 11
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`DURIE TANGRI LLP
`RAGESH K. TANGRI (SBN 159477)
`rtangri@durietangri.com
`JOSEPH C. GRATZ (SBN 240676)
`jgratz@durietangri.com
`ANNIE A. LEE (SBN 328802)
`alee@durietangri.com
`217 Leidesdorff Street
`San Francisco, CA 94111
`Telephone: 415-362-6666
`Facsimile:
`415-236-6300
`
`DURIE TANGRI LLP
`ALLYSON R. BENNETT (SBN 302090)
`abennett@durietangri.com
`953 East 3rd Street
`Los Angeles, CA 90013
`Telephone: 213-992-4499
`Facsimile:
`415-236-6300
`
`Attorneys for Defendant
`INSTAGRAM, LLC
`
`ALEXIS HUNLEY, et al.,
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`v.
`INSTAGRAM, LLC,
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`Case No. 3:21-cv-03778-CRB
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`DEFENDANT INSTAGRAM, LLC’S NOTICE
`OF MOTION AND MOTION TO DISMISS
`PLAINTIFFS’ AMENDED COMPLAINT;
`MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT THEREOF
`
`Date:
`January 28, 2022
`Time: 10:00 a.m.
`Ctrm: 6
`Judge: Honorable Charles R. Breyer
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`Plaintiffs,
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`Defendant.
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`NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT;
`MEMORANDUM OF POINTS AND AUTHORITIES / CASE NO. 3:21-CV-03778-CRB
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`Case 3:21-cv-03778-CRB Document 31 Filed 11/19/21 Page 2 of 11
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`NOTICE OF MOTION AND MOTION TO DISMISS
`PLEASE TAKE NOTICE THAT on January 28, 2022, in Courtroom 6 on the 17th floor of the
`above court, located at 450 Golden Gate Avenue, San Francisco, CA 94102, Defendant Instagram, LLC
`(“Instagram”), by and through its attorneys of record, will and hereby does move the Court pursuant to
`Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the First Amended Complaint for failure
`to state a claim upon which relief can be granted. This motion is based on the pleadings and papers on
`file in this action, the following memorandum of points and authorities, and any further papers, evidence
`or argument as may be submitted in connection with this motion.
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`Dated: November 19, 2021
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`By:
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`DURIE TANGRI LLP
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`/s/ Joseph C. Gratz
`JOSEPH C. GRATZ
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`Attorneys for Defendant
`INSTAGRAM, LLC
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`NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT;
`MEMORANDUM OF POINTS AND AUTHORITIES / CASE NO. 3:21-CV-03778-CRB
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`Case 3:21-cv-03778-CRB Document 31 Filed 11/19/21 Page 3 of 11
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`TABLE OF CONTENTS
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`Page(s)
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`INTRODUCTION ...........................................................................................................................1 
`BACKGROUND .............................................................................................................................1 
`LEGAL STANDARD ......................................................................................................................2 
`ARGUMENT ...................................................................................................................................2 
`The Court’s Reasons for Dismissing Plaintiffs’ Original Complaint Apply with
`A. 
`Equal Force to the First Amended Complaint .....................................................................2 
`1. 
`Plaintiffs’ legal arguments are contrary to Ninth Circuit law. .................................3 
`2. 
`Plaintiffs’ new factual allegations do not change the Server Test analysis. ............3 
`3. 
`That the Server Test is not mentioned in Instagram’s Terms of Use is not a
`“factual issue.” .........................................................................................................4 
`Leave to Amend Would be Futile ........................................................................................5 
`B. 
`CONCLUSION ................................................................................................................................5 
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`I. 
`II. 
`III. 
`IV. 
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`V. 
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`Case 3:21-cv-03778-CRB Document 31 Filed 11/19/21 Page 4 of 11
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Adkins v. Apple Inc.,
`147 F. Supp. 3d 913 (N.D. Cal. 2014) .................................................................................................... 3
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`Allen v. City of Beverly Hills,
`911 F.2d 367 (9th Cir. 1990) .................................................................................................................. 5
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`AmerisourceBergen Corp. v. Dialysist West, Inc.,
`465 F.3d 946 (9th Cir. 2006) .................................................................................................................. 5
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`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ............................................................................................................................ 2, 3
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`Bauer v. Tacey Goss, P.S.,
`No. C 12-00876 JSW, 2012 WL 2838834 (N.D. Cal. July 10, 2012) .................................................... 5
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ................................................................................................................................ 2
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`Curry v. Yelp Inc.,
`876 F.3d 1219 (9th Cir. 2017) ................................................................................................................ 2
`
`Farhang v. Indian Inst. Of Tech., Kharagpur,
`2010 WL 3504897 (N.D. Cal. Sep. 7, 2010) .......................................................................................... 3
`
`Gieseke v. Bank of America, N.A.,
`No. 13-cv-04772-JST, 2014 WL 3737970 (N.D. Cal. 2014) ................................................................. 5
`
`Perfect 10, Inc. v. Amazon, Inc.,
`508 F.3d 1146 (9th Cir. 2007) .................................................................................................... 1, 2, 4, 5
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`Salameh v. Tarsadia Hotel,
`726 F.3d 1124 (9th Cir. 2013) ................................................................................................................ 5
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`Case 3:21-cv-03778-CRB Document 31 Filed 11/19/21 Page 5 of 11
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`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION
`This Court previously dismissed all of Plaintiffs’ claims as barred by the Ninth Circuit’s Server
`Test as articulated in Perfect 10, Inc. v. Amazon, Inc., 508 F.3d 1146 (9th Cir. 2007). See Order Granting
`Motion to Dismiss (“MTD Order”), ECF No. 27 at 2-3. This Court held that Plaintiffs failed to allege
`direct infringement for their secondary liability claims against Instagram because Plaintiffs had
`affirmatively alleged that third-party website embedders like Buzzfeed and Time do not store the
`copyrighted works on their own servers. Id. Plaintiffs’ First Amended Complaint (“FAC”), ECF No. 28,
`does not contain any new factual allegations to change either that analysis or the result. Instead,
`Plaintiffs’ new allegations consist of a slew of improper legal argument contrary to Ninth Circuit law,
`and new characterizations of the exact same technical embedding process alleged in the dismissed
`complaint.
`If Plaintiffs want to challenge the wisdom of the Server Test, they can raise it with the Ninth
`Circuit. But Plaintiffs should not be permitted to waste the Court’s limited resources by filing serial
`amended complaints that are subject to dismissal for the exact same reasons. Plaintiffs’ FAC should be
`dismissed without leave to amend.
`II.
`BACKGROUND
`On May 19, 2021, Plaintiffs brought this action alleging secondary copyright liability against
`Instagram for Instagram posts that were embedded on third-party websites like Buzzfeed and Time. In
`their original complaint, Plaintiffs alleged that in an embedded post, it is Instagram’s servers that host
`and transmit the allegedly infringing content, without the copyrighted works ever being saved on the
`servers of the third-party websites. See Compl. ¶ 34, ECF No. 1, (“‘[E]mbedding’ is a technical process
`by which a copyrighted work can be made visible and displayed without the copyrighted work being
`saved on the server of the third-party website.”) (emphasis added); id. at. ¶ 35 (“Put another way,
`‘embedding’ a photograph or video on a webpage is the act of a technical web coder adding a specific
`‘embed’ code to the HTML instructions that incorporates a photograph or video, hosted in this case on
`Instagram’s server, to be displayed on a third-party webpage that the third-party controls with regard to
`the other text, photos or videos around the embedded work.”) (emphasis added). On September 17,
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`Case 3:21-cv-03778-CRB Document 31 Filed 11/19/21 Page 6 of 11
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`2021, this Court dismissed all of Plaintiffs’ claims based on those allegations in the complaint. See MTD
`Order at 2 (citing Compl. ¶¶ 34-35). Plaintiffs then filed the FAC on October 18, 2021, and filed a
`redline the next day. FAC, ECF Nos. 28-29.
`III. LEGAL STANDARD
`To survive a motion to dismiss, plaintiffs must allege “enough facts to state a claim to relief that
`is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
`plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
`inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
`(2009) (citation omitted). While the Court must accept plaintiffs’ well-pleaded factual allegations as
`true, it need not accept legal conclusions or “[t]hreadbare recitals of the elements of a cause of action,
`supported by mere conclusory statements.” Id. A Court may dismiss an amended complaint with
`prejudice where the amended complaint “d[oes] not cure the previously cited deficiencies” of the
`previous complaint. Curry v. Yelp Inc., 876 F.3d 1219, 1224 (9th Cir. 2017).
`IV. ARGUMENT
`A.
`The Court’s Reasons for Dismissing Plaintiffs’ Original Complaint Apply with Equal
`Force to the First Amended Complaint
`Put simply, Plaintiffs’ new allegations in the FAC do not affect the applicability of the Server
`Test to the facts of this case. In its order granting Instagram’s motion to dismiss the original complaint,
`this Court held as a matter of law that Instagram could not be secondarily liable for copyright
`infringement because it was undisputed that the third-party websites like Buzzfeed and Time that
`Plaintiffs alleged to be the direct infringers did not store the embedded images and videos on their own
`servers. MTD Order at 2. Under the Ninth Circuit’s ruling in Perfect 10, Buzzfeed and Time therefore
`did not “fix” the copyrighted work in any “tangible medium of expression,” and did not display ‘“copies’
`of the copyrighted work” under the Copyright Act. Id. at 2-3. Accordingly, neither Buzzfeed nor Time
`could be directly liable for copyright infringement, meaning that Instagram could not be secondarily
`liable either.
`As shown below, none of the new allegations in the FAC change that analysis. Plaintiffs’ FAC
`should be dismissed for the same reasons as the original complaint.
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`1.
`Plaintiffs’ legal arguments are contrary to Ninth Circuit law.
`Plaintiffs insert a nine-page legal brief, complete with citations to statutes, legislative history, and
`case law, in the middle of their First Amended Complaint. FAC ¶¶ 29-53. The FAC argues that “under
`the plain language of the Copyright Act,” the physical location or possession of the displayed copy is
`“not relevant or an underlying requisite to the display right.” FAC ¶ 30. The FAC also asserts that
`Plaintiffs’ reading of the statute is consistent with the Supreme Court’s statements in various other cases.
`FAC ¶¶ 30-34, 36 (discussing N.Y. Times Co. v. Tasini and Am. Broad. Cos. v. Aereo, Inc.). Plaintiffs
`spend nearly four pages of the FAC delving into the legislative history of the Copyright Act and arguing
`that application of the Server Test here would be inconsistent with the legislative intent behind the Act.
`FAC ¶¶ 40-52. Far from saving the FAC from dismissal, those allegations consisting of legal argument
`must be disregarded, and would be the proper subject of a motion to strike. See Adkins v. Apple Inc., 147
`F. Supp. 3d 913, 923 (N.D. Cal. 2014) (“striking nine paragraphs from the FAC [that] consist[ed] of
`improper legal argument”) (citation omitted); Farhang v. Indian Inst. Of Tech., Kharagpur, 2010 WL
`3504897, *1 (N.D. Cal. Sep. 7, 2010) (striking “legal argument, which does not belong in a complaint”);
`Ashcroft, 556 U.S. at 678 (“[T]he tenet that a court must accept as true all of the allegations contained in
`a complaint is inapplicable to legal conclusions.”). As this Court stated in its order dismissing the
`original complaint, if Plaintiffs want to argue that the Ninth Circuit’s Server Test is inconsistent with the
`Copyright Act, they are “free to present that argument to the Ninth Circuit and the Supreme Court.”
`MTD Order at 5.
`2.
`Plaintiffs’ new factual allegations do not change the Server Test analysis.
`Plaintiffs’ FAC also adds new factual allegations regarding embedding that recount the exact
`same process alleged in the original complaint. Most importantly, Plaintiffs have left untouched the
`allegations upon which this Court based its order granting the motion to dismiss. Compare FAC ¶¶ 58-
`59 with Compl. ¶¶ 34-35. Instead, the FAC offers only new characterizations of the already-alleged
`embedding process. The FAC describes embedding as “code interfacing with another form of code” to
`cause a display to occur in “two or more places at the same time,” ¶ 3, as opening “a window” into the
`photos and videos on Instagram, ¶ 58, and as creating a “bridge or window across the internet” where
`viewers “do not know or care that the photo is stored on Instagram’s server,” ¶ 59. Those
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`characterizations do not affect the underlying facts, and thus do not change the application of the Server
`Test.
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`The FAC also includes a high-level description of the “four key participants” involved in
`embedding an Instagram post and a “visual step-by-step” describing how a post published by a user can
`be embedded. FAC ¶¶ 38-39. None of this is new. Nor do any of these allegations change or cast any
`doubt on the key fact relevant to the Server Test: that posts embedded from Instagram are stored on
`Instagram’s servers, not the servers of the third-party websites that embed the Instagram post.
`Indeed, some of the FAC’s embellishments make even clearer that this case is on all fours with
`Perfect 10, since Plaintiffs now affirmatively allege that the process at issue here is indistinguishable
`from the technical process at issue in that case. Compare FAC ¶ 35 (“using embed code (a process
`legally indistinguishable from in-line linking or other methods of providing HTML instructions for
`image retrieval)”) (emphasis added) with Perfect 10, 508 F.3d 1146 at 1159-60 (affirming district court’s
`holding that Plaintiff was “unlikely to succeed in its claim that Google’s in-line linking to full-size
`infringing images constituted a direct infringement”).
`3.
`That the Server Test is not mentioned in Instagram’s Terms of Use is not a
`“factual issue.”
`Plaintiffs attempt to manufacture a “factual issue” by asserting that the Terms of Use and
`Platform Policy do not mention the “Server Test,” apparently insinuating that means Instagram did not
`intend for the Server Test to apply to its embedding feature. FAC at ¶ 2.1
`But allegations relating to Instagram’s state of mind—specifically, whether Instagram believes
`the Server Test applies (it does)—do not stand in the way of dismissal. If that were the case, every
`plaintiff in a lawsuit could sidestep a motion to dismiss by simply alleging the “fact” that the defendant
`did not intend for the asserted law to apply because they did not previously state that it should apply. At
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`1 It is unclear how Plaintiffs contend that “[i]n fact, the opposite is true,” because Instagram “admitted in
`open court on December 1, 2020” that third parties must “obtain all necessary rights (permission from the
`copyright holder) before embedding the copyrighted work.” FAC at ¶ 68. In any event, Instagram
`already explained on reply in support of its first motion to dismiss that Instagram’s “public admissions”
`that it did not grant third parties sublicenses to embed did not imply that Instagram believes such
`sublicenses are necessary, only that the obligation falls on third-party embedders to ensure any necessary
`rights are secured. See MTD Reply Brief, ECF No. 26, at 12 n.5.
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`any rate, the Server Test is binding law, and it applies to all copyrighted works by default. There is no
`need to mention the Server Test in a user agreement for it to apply; it certainly wasn’t mentioned in any
`user agreement in the Perfect 10 case, and it applied there.
`B.
`Leave to Amend Would be Futile
`“A district court’s discretion to deny leave to amend is particularly broad where the plaintiff has
`previously amended.” Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013) (quotations
`omitted) (citation omitted). Here, leave to amend a second time would be futile because, as shown
`above, the identity of the server that transmits the copyrighted works to the user remains undisputed. The
`lack of new factual allegations in Plaintiffs’ First Amended Complaint relevant to the Server Test
`demonstrates that Plaintiffs cannot allege new facts that would change the Server Test analysis. Allen v.
`City of Beverly Hills, 911 F.2d 367, 374 (9th Cir. 1990) (quotations omitted) (affirming district court’s
`dismissal with prejudice where the movant in his previous amended complaint “presented no new facts
`but only new theories and provided no satisfactory explanation for his failure to fully develop his
`contentions originally.”); Gieseke v. Bank of America, N.A., No. 13-cv-04772-JST, 2014 WL 3737970, at
`*4 (N.D. Cal. 2014) (citation omitted) (“The fact that the Giesekes did not correct the deficiencies
`contained in their original complaint is a strong indication that the plaintiffs have no additional facts to
`plead.”). Any new allegations Plaintiffs may include in another complaint in an attempt to change the
`Server Test analysis would not be credible against the weight of the allegations in the first two
`complaints. See also Bauer v. Tacey Goss, P.S., No. C 12-00876 JSW, 2012 WL 2838834, at *3 (N.D.
`Cal. July 10, 2012) (“Because Plaintiffs have not offered a credible explanation for their contradiction,
`the Court need not accept their amended allegations as true.”) (citation omitted). Thus, any attempt to
`amend the complaint again should be rejected. AmerisourceBergen Corp. v. Dialysist West, Inc., 465
`F.3d 946, 951 (9th Cir. 2006) (“[a] district court need not grant leave to amend where the amendment: (1)
`prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4)
`is futile.”) (citation omitted).
`V.
`CONCLUSION
`For the foregoing reasons, Instagram respectfully requests that the Court dismiss Plaintiffs’
`copyright claims, without leave to amend.
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`Dated: November 19, 2021
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`By:
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`DURIE TANGRI LLP
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`/s/ Joseph C. Gratz
`JOSEPH C. GRATZ
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`Attorneys for Defendant
`INSTAGRAM, LLC
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`Case 3:21-cv-03778-CRB Document 31 Filed 11/19/21 Page 11 of 11
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`CERTIFICATE OF SERVICE
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`I hereby certify that on November 19, 2021 the within document was filed with the Clerk of the
`Court using CM/ECF which will send notification of such filing to the attorneys of record in this case.
`
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`/s/ Joseph C. Gratz
`JOSEPH C. GRATZ
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