Case 3:21-cv-04184-JSC Document 10 Filed 06/30/21 Page 1 of 7
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`DAVID A. STEBBINS,
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`Plaintiff,
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`v.
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`KARL POLANO,
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`Case No. 21-cv-04184-JSC
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`SCREENING ORDER PURSUANT TO
`28 U.S.C. § 1915 AND ORDER RE:
`MOTION TO APPOINT COUNSEL
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`Defendant.
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`Re: Dkt. Nos. 1, 3
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`The Court previously granted Plaintiff’s Application to Proceed in Forma Pauperis. (Dkt.
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`No. 6.) It must now review the complaint’s allegations under 28 U.S.C. § 1915. Because
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`Plaintiff’s claims for misrepresentation under 17 U.S.C. § 512(f)(2) and intentional infliction of
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`emotional distress (“IIED”) do not comply with Federal Rule of Civil Procedure 8, the Court gives
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`Plaintiff the opportunity to amend the complaint.
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`Also pending before the Court is Plaintiff’s motion to appoint counsel. (Dkt. No. 3.) For
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`the reasons explained below, the Court DENIES the motion.
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`COMPLAINT ALLEGATIONS
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`Plaintiff has dedicated channels on YouTube and Twitch where he posts original videos
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`under the alias Acerthorn. He uses both channels as a part-time source of income and hopes to
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`earn enough to become full-time. Defendant is a resident of Switzerland who also has channels on
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`YouTube and Twitch, using the alias SofiannP.
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`On April 10, 2021, Plaintiff accidentally broadcast a live video for about two hours on his
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`own Twitch channel. Unbeknownst to Plaintiff, people who followed his Twitch channel could
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`watch him in his daily activities. At one point, the live video included strange sounds that Plaintiff
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`does not recognize. The strange noises were the most memorable part of an otherwise banal
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`Northern District of California
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`United States District Court
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`Case 3:21-cv-04184-JSC Document 10 Filed 06/30/21 Page 2 of 7
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`video. After he realized the video was broadcast, Plaintiff registered a copyright and posted the
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`video on his YouTube channel, with viewing access limited to followers who pay him $20 per
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`month.
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`In mid-April 2021, Defendant began to harass Plaintiff online, including “doxxing” him by
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`posting personal information on YouTube and Twitch. Defendant sent messages to new followers
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`who came onto Plaintiff’s channels “in an attempt to get them to likewise despise Plaintiff,”
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`thereby “heavily slowing down [] the growth of Plaintiff’s fanbase” and paying followers. (Dkt.
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`No. 1 at 3.) Defendant also sent harassing messages directly to Plaintiff.
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`On May 20, 2021, Defendant posted a video to his own YouTube channel. Of the 50
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`seconds in the video, 43 seconds were a direct clip from Plaintiff’s April 10, 2021 video. Plaintiff
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`alleges that the only way Defendant could have acquired the clip is by illegally downloading it
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`from Plaintiff’s Twitch channel with third-party software; there is no way to download directly
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`from Twitch, and Plaintiff “knows for a fact” that Defendant does not have access to the video on
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`YouTube because he does not pay Plaintiff $20 a month for access. (Id. at 4.) Below the video,
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`Defendant included the following description:
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`This is a parody. (obviously)
`Fair Use Disclaimer:
`- Copyright Disclaimer under Section 107 of the Copyright Act of 1976,
`allowance is made for ‘fair use’ for purposes such as criticism, comment, news
`reporting, teaching, scholarship, education and research.
`- Fair use is a use permitted by copyright statute that might otherwise be
`infringing.
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`(Id.) Plaintiff filed a “DMCA Takedown Notice” with YouTube, and Defendant’s video was
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`removed about an hour later. On May 25, 2021, Defendant filed a “DMCA Counter-Notice” with
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`YouTube, in which he stated, “I’ve created the video as a parody of it’s [sic] original content
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`which was a 2 hour livestream, this parody is meant to be a meme and nothing like Acerthorns
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`original content. This is Fair Use as his material has been altered to create new content and has
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`also not been monetized.” (Id. at 4-5.) Plaintiff alleges that Defendant’s video “almost
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`completely usurps the market” for his own video because “people are unlikely to pay [] the $20
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`per month fee to see the livestream and strange noises the legitimate way.” (Id. at 4.) Defendant’s
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`Northern District of California
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`United States District Court
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`Case 3:21-cv-04184-JSC Document 10 Filed 06/30/21 Page 3 of 7
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`video will be automatically reinstated on June 8, 2021, unless Plaintiff files a lawsuit.
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`Plaintiff claims one count of copyright infringement for illegally downloading his video;
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`another count for using the video; violations of 17 U.S.C. § 512(f)(2); and IIED.
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`LEGAL STANDARD
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`A court must dismiss an in forma pauperis complaint before service of process if it is
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`frivolous, fails to state a claim, or contains a complete defense to the action on its face. 28 U.S.C.
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`§ 1915(e)(2). Section 1915(e)(2) parallels the language of Federal Rules of Civil Procedure
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`12(b)(6) regarding dismissals for failure to state a claim. See 28 U.S.C. § 1915(e)(2); see also
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`Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000). The complaint therefore must allege
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`facts that plausibly establish each defendant’s liability. See Bell Atl. Corp. v. Twombly, 550 U.S.
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`544, 555-57 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that
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`allows the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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`A complaint must also comply with Federal Rule of Civil Procedure 8, which requires the
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`complaint to contain “a short and plain statement of the claim showing that the pleader is entitled
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`to relief.” Fed. R. Civ. P. 8(a)(2); see also Moss v. Infinity Ins. Co., No. 15-CV-03456-JSC, 2015
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`WL 5360294, at *2 (N.D. Cal. Sept. 14, 2015). “While the federal rules require brevity in
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`pleading, a complaint nevertheless must be sufficient to give the defendants ‘fair notice’ of the
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`claim and the ‘grounds upon which it rests.’” Coleman v. Beard, No. 14-CV-05508-YGR (PR),
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`2015 WL 395662, at *4 (N.D. Cal. Jan. 29, 2015) (quoting Erickson v. Pardus, 551 U.S. 89, 93
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`(2007)). A complaint that fails to state a defendant’s specific acts “that violated the plaintiff’s
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`rights fails to meet the notice requirements of Rule 8(a).” Medina Chiprez v. Becerra, No. 20-CV-
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`00307-YGR (PR), 2020 WL 4284825, at *3 (N.D. Cal. July 27, 2020) (citing Hutchinson v.
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`United States, 677 F.2d 1322, 1328 n.5 (9th Cir. 1982)).
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`Plaintiff is proceeding without representation by a lawyer. While the Court must construe
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`the complaint liberally, see Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir. 1984), it may not add to
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`the factual allegations in the complaint, see Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992).
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`Litigants unrepresented by a lawyer remain bound by the Federal Rules and Local Rules of this
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`Northern District of California
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`Case 3:21-cv-04184-JSC Document 10 Filed 06/30/21 Page 4 of 7
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`District. See N.D. Cal. Civ. L.R. 3-9(a).
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`DISCUSSION
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`I. Copyright Infringement
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`To state a claim for copyright infringement, a plaintiff must allege facts plausibly showing
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`(1) that he owns a valid copyright in the work, and (2) “copying” and “unlawful appropriation.”
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`Skidmore for Randy Craig Wolfe Trust v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020) (en
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`banc). For “copying,” the alleged facts must plausibly show, directly, that the defendant copied
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`or, circumstantially, that the defendant had access to the plaintiff’s work and the works are
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`strikingly similar. Id. For “unlawful appropriation,” the alleged facts must plausibly show that
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`specific elements of the works are objectively similar and that an ordinary observer would view
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`the overall works as similar. Id.
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`Fair use is an affirmative defense establishing that the defendant’s use did not infringe the
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`copyright. Monge v. Maya Magazines, Inc., 688 F.3d 1164, 1170 (9th Cir. 2012); see Lenz v.
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`Universal Music Corp., 815 F.3d 1145, 1151-53 (9th Cir. 2016). It is “a mixed question of law
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`and fact” that “requires a case-by-case determination whether a particular use is fair.” Harper &
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`Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560, 549 (1985). Typically considered at
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`the summary judgment stage, fair use “may be considered on a motion to dismiss . . . where no
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`material facts are in dispute.” See Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 530 (9th
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`Cir. 2008). But, on the face of the complaint, “it is not necessary to plead facts that disprove fair
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`use [for the complaint] to survive.” Peterman v. Republican Nat’l Comm., 320 F. Supp. 3d 1151,
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`1157 (D. Mont. 2018).
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`Plaintiff’s complaint adequately alleges that he owned a copyright as the original and sole
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`author of the April 10, 2021 video. The complaint also plausibly shows direct copying; Defendant
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`stated his video, the majority of which was a direct clip from Plaintiff’s, was a parody of
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`Plaintiff’s original video. The complaint alleges unlawful appropriation, in that both videos
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`contained unique strange noises and the 43-second clip from Plaintiff’s video would be
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`recognizable to an ordinary observer. Moreover, although the complaint suggests Defendant will
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`raise the issue of fair use, that is an affirmative defense that Plaintiff need not disprove at this
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`Case 3:21-cv-04184-JSC Document 10 Filed 06/30/21 Page 5 of 7
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`stage.
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`II. Misrepresentation Under 17 U.S.C. § 512(f)(2)
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`To state a claim for misrepresentation under 17 U.S.C. § 512(f)(2), a plaintiff must allege
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`facts plausibly showing (1) that the defendant knowingly and materially misrepresented that its
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`material was removed or disabled by mistake or misidentification; (2) the internet service provider
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`relied on the misrepresentation in replacing the removed material or ceasing to disable access to it;
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`and (3) the plaintiff was injured as a result. See Automattic Inc. v. Steiner, 82 F. Supp. 3d 1011,
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`1026 (N.D. Cal. 2015). The first element is not met if the defendant had a subjective good faith
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`belief that it was not making a misrepresentation—in this situation, if the defendant had a
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`subjective good faith belief that its material was fair use and therefore removing it was a
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`misidentification. See Lenz, 815 F.3d at 1153-54.
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`Plaintiff’s complaint does not adequately allege the first element. Plaintiff alleges that
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`Defendant’s Counter-Notice claiming fair use was false and frivolous, and that Defendant’s
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`pattern of harassment suggests that Defendant’s video was meant to harass, not parody. However,
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`the facts as alleged do not plausibly suggest that any misrepresentation in Defendant’s Counter-
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`Notice was knowing. The allegations more plausibly suggest that Defendant believed his use of
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`Plaintiff’s video was fair use, and that such a belief might have been reasonable.
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`III.
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`Intentional Infliction of Emotional Distress
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`To state a claim for IIED, the plaintiff must allege facts that plausibly show: (1) extreme
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`and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the
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`probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional
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`distress; and (3) actual and proximate causation of the emotional distress by the defendant’s
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`outrageous conduct. Corales v. Bennett, 567 F.3d 554, 571 (9th Cir. 2009).
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`Plaintiff’s complaint does not make clear which conduct is the basis for his IIED claim.
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`(Dkt. No. 1 at 5 (“Plaintiff also believes his entitlement to judgment on the merits in regards to the
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`[IIED] is also self-explanatory at this point.”).) Regarding both Defendant’s use of Plaintiff’s
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`video and earlier online harassment, the complaint does not allege facts to show the conduct was
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`extreme and outrageous. Likewise, Plaintiff does not explain how or to what extent the conduct
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`Case 3:21-cv-04184-JSC Document 10 Filed 06/30/21 Page 6 of 7
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`caused him to suffer severe or extreme emotional distress, apart from his possible financial losses
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`due to Defendant’s competing video.
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`IV. Motion to Appoint Counsel
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`Plaintiff asks the Court to appoint counsel. (Dkt. No. 3.) At this time, the Court
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`determines that the case does not merit pro bono representation pursuant to Northern District of
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`California General Order 25. Accordingly, the motion is DENIED.
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`CONCLUSION
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`For the reasons described above, Plaintiff’s 17 U.S.C. § 512(f)(2) and IIED claims do not
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`comply with Rule 8. Leave to amend is appropriate. Doe v. United States, 58 F.3d 494, 497 (9th
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`Cir. 1995); see also Lopez, 203 F.3d at 1127. The Court encourages Mr. Stebbins to continue to
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`seek free assistance from the Northern District’s Legal Help Center, 450 Golden Gate Avenue,
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`15th Floor, Room 2796, San Francisco, CA 94102. In light of the ongoing COVID-19 pandemic,
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`Mr. Stebbins should make a telephone appointment by calling (415) 782-8982.
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`If he chooses to amend, Plaintiff should: set forth the complaint’s allegations in separate
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`numbered paragraphs; set forth each claim in a separate numbered paragraph; and identify each
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`factual allegation that supports each claim for relief. Additionally, Plaintiff is informed that the
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`Court cannot refer to prior pleadings in order to make an amended complaint complete. The
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`amended complaint must be complete in itself because it replaces the previously filed complaints.
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`See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Accordingly, the amended complaint
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`should contain all the defendants, claims, and specific factual allegations that Plaintiff wishes to
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`put before the Court. Finally, Plaintiff is warned that failure to comply with the Federal Rules of
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`Civil Procedure, the Local Rules, or any court order could result in a report and recommendation
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`that his complaint be dismissed.
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`Plaintiff’s amended complaint, if any, must be filed by July 30, 2021.
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`This Order disposes of Docket No. 3.
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`//
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`//
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`//
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`Case 3:21-cv-04184-JSC Document 10 Filed 06/30/21 Page 7 of 7
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`IT IS SO ORDERED.
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`Dated: June 30, 2021
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`______________________________________
`JACQUELINE SCOTT CORLEY
`United States Magistrate Judge
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