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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`BLAINE HARRINGTON III,
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`Plaintiff,
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`v.
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`PINTEREST, INC.,
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`Case No. 5:20-cv-05290-EJD
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`ORDER GRANTING MOTION TO
`DISMISS COUNTS II AND III OF
`PLAINTIFF’S FIRST AMENDED
`COMPLAINT
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`Defendant.
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`Re: Dkt. No. 24
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`Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant Pinterest, Inc.
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`(“Pinterest”) moves to dismiss with prejudice Counts II and III of the First Amended Complaint
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`(“FAC”), for contributory copyright infringement and violation of the Digital Millennial
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`Copyright Act (“DMCA”), 17 U.S.C. § 1202(b)). Def. Pinterest, Inc.’s Mot. to Dismiss Counts II
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`and III of Pl.’s First Amend. Class Action Compl. (“Mot.”), Dkt. No. 24. Harrington filed an
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`Opposition (“Opp’n), Dkt. No. 25. Pinterest filed a Reply. Dkt. No. 27. The Court finds this
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`matter appropriate for disposition without oral argument pursuant to Civil Local Rule 7-1(b). For
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`the reasons stated below, the Court grants the motion to dismiss with leave to amend.
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`I.
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`BACKGROUND1
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`Plaintiff Blaine Harrington III (“Harrington”) is a professional travel photographer and is
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`the sole copyright owner of his photographic works (“Works”). FAC, Dkt. No. 21, ¶¶ 13, 15.
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`Harrington gives the JPEG file of his Works an identifying name and adds metadata to his images.
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`Id. ¶ 52. The metadata is known as EXIF and/or IPTC. Id. “The EXIF/IPTC is wrapped up and
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`1 The Background is a brief summary of the allegations in the FAC.
`Case No.: 5:20-cv-05290-EJD
`ORDER GRANTING MOTION TO DISMISS COUNTS II AND III OF PLAINTIFF’S FIRST
`AMENDED COMPLAINT
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`encoded into the image file, using an encoding format known as Adobe XMP.” Id. ¶ 53.
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`Specifically, Harrington’s digital works are embedded with a description; the creator; a copyright
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`notice; and a credit line source. Id. ¶ 54. Harrington also embeds his address, phone, email,
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`website, instructions, and “rights/use terms.” Id. ¶ 55.
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`Pinterest is a social media platform that allows its users to create and share virtual bulletin
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`boards (“boards”) to which they have posted, or “pinned,” digital images that have been uploaded.
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`Id. ¶¶ 2, 23. A user’s main Pinterest page is called a “home feed.” Id. ¶ 24. The Pins in a user’s
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`“home feed” consist of not only Pins the user has selected, but also Pins displayed by Pinterest.
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`Id. The Pins displayed by Pinterest are Pins from Pinterest’s library of hundreds of billions of
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`images consisting of Pins by users. Id. The images Pinterest displays to the user are personalized
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`based on the user’s boards, recent activity on Pinterest, and favorite topics. Id. The images users
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`see on their home feed are integrated with advertisements designed to appear similar to or within
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`the same theme as the user’s Pins. Id. ¶¶ 24-25. Pinterest also distributes images directly to the
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`user by email and/or through the Pinterest app. Id. ¶ 26. Pinterest generates its revenues through
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`advertisements. Id. ¶¶ 25-26.
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`Harrington alleges that Pinterest does not have in place a system for screening Pins for
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`copyright notices or other indicia of copyright ownership associated with the “pinned” images. Id.
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`¶ 27. Rather, Pinterest deliberately removes indicia of copyright ownership from pinned images
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`“to render its paid advertisement more effective and to actively thwart the efforts of copyright
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`owners, like [Harrington], to police the misuse of their works on and through Pinterest’s website
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`and app.” Id. Pinterest allegedly strips the images of visible identifying source and/or copyright
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`management information (“CMI”), as well as metadata. Id. ¶¶ 51-55, 60-64. When a user “pins”
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`or uploads an image, Pinterest renames the image with a new JPEG name and strips the
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`EXIF/IPTC from the image before storing and displaying that image. Id. ¶ 60. As a result,
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`Pinterest is the source of “rampant infringement by third parties . . . .” Id. ¶ 73. Harrington has
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`tens of thousands if not hundreds of thousands of images on Pinterest. Id. ¶¶ 75, 86. His Works
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`Case No.: 5:20-cv-05290-EJD
`ORDER GRANTING MOTION TO DISMISS COUNTS II AND III OF PLAINTIFF’S FIRST
`AMENDED COMPLAINT
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`have been displayed without his consent by Pinterest to advertise a wide range of goods and
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`services. Id. ¶¶ 29-34, 45-46. Based on these allegations, Harrington filed this putative class
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`action suit, asserting claims for (1) direct copyright infringement; (2) contributory infringement;
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`and (3) violation of the DMCA.2
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`II.
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`STANDARDS
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`Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient
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`specificity “to give the defendant fair notice of what the . . . claim is and the grounds upon which
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`it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted).
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`A complaint which falls short of the Rule 8(a) standard may be dismissed if it fails to state a claim
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`upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to
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`dismiss, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to
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`relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
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`Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when the plaintiff
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`pleads factual content that allows the court to draw the reasonable inference that the defendant is
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`liable for the misconduct alleged. Id.
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`When deciding whether to grant a motion to dismiss under Rule 12(b)(6), the court must
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`generally accept as true all “well-pleaded factual allegations.” Id. at 664. The court must also
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`construe the alleged facts in the light most favorable to the plaintiff. See Retail Prop. Trust v.
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`United Bhd. Of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014) (providing the
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`court must “draw all reasonable inferences in favor of the nonmoving party” for a Rule 12(b)(6)
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`motion). Dismissal “is proper only where there is no cognizable legal theory or an absence of
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`sufficient facts alleged to support a cognizable legal theory.” Navarro v. Block, 250 F.3d 729, 732
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`(9th Cir. 2001).
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`2 This case is an offshoot of a parallel action that Harrington’s counsel has been litigating in the
`Northern District of California, Davis v. Pinterest, Inc., No. 19-cv-7650-HSG. Judge Gilliam
`declined to relate the two cases because Harrington is pursuing a putative class action suit and
`Davis is not.
`Case No.: 5:20-cv-05290-EJD
`ORDER GRANTING MOTION TO DISMISS COUNTS II AND III OF PLAINTIFF’S FIRST
`AMENDED COMPLAINT
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`III. DISCUSSION
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`Pinterest seeks dismissal of Count II for contributory infringement and Count III for
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`violation of the DMCA. As to Count II, Pinterest contends that Harrington fails to plead facts
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`demonstrating that Pinterest: (1) (a) had actual knowledge of any specific instance of third-party
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`direct infringement; and (b) materially contributed to that infringement by failing to employ
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`simple measures for removing or halting it; or (2) induced users to use its service for the express
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`purpose of promoting copyright infringement. As to Count III, Pinterest argues that Harrington
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`fails to plead facts plausibly showing the requisite mens rea.
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`A. Count II: Contributory Copyright Infringement
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`Harrington’s contributory infringement claim is premised on allegations that Pinterest
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`materially contributed to the alleged infringement of his works by users who either (1) uploaded
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`those images to Pinterest without authorization; or (2) downloaded them after they were uploaded
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`by others. FAC ¶¶ 65-90.
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`To establish a claim for contributory copyright infringement, a plaintiff “must establish
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`that there has been direct infringement by third parties.” See Perfect 10, Inc. v. Amazon.com, Inc.
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`(“Amazon”), 508 F.3d 1146, 1169 (9th Cir. 2007). Once this threshold issue has been established,
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`a plaintiff must also allege that the defendant “(1) has knowledge of another’s infringement and
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`(2) either (a) materially contributes to or (b) induces that infringement.” Perfect 10, Inc. v.
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`Giganews, Inc. (“Giganews”), 847 F.3d 657, 670 (9th Cir. 2017) (quotation omitted). In the
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`online context, a computer system operator can be held liable for contributory copyright
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`infringement if it has “actual knowledge that specific infringing material is available using its
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`system, and . . . simple measures [would] prevent further damage to copyrighted works, yet [the
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`defendant] continues to provide access to infringing works.” Id. at 671 (quotation omitted).
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`Inducement requires the defendant to “distribute[] a device with the object of promoting its use to
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`infringe copyright, as shown by clear expression or other affirmative steps taken to foster
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`infringement.” See id. at 672.
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`Case No.: 5:20-cv-05290-EJD
`ORDER GRANTING MOTION TO DISMISS COUNTS II AND III OF PLAINTIFF’S FIRST
`AMENDED COMPLAINT
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`1. Knowledge of Specific Instances of Alleged Infringement
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`As an initial matter, the parties dispute what is required to show knowledge of
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`infringement. Pinterest contends that a plaintiff asserting contributory infringement must plead
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`and prove “actual knowledge of specific acts of infringement.” Mot. at 1 (emphasis in original).
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`Harrington contends at the pleading stage, allegations of “constructive knowledge” (Opp’n at 15)
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`or “willful blindness” (id. at 16) suffice, citing Erickson Prods., Inc. v. Kast, 921 F.3d 822 (9th
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`Cir. 2019) and A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1020 (9th Cir. 2001), as
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`amended (Apr. 3, 2001).3
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`In Erickson, defendant hired a website developer to revamp his business’ website.
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`Erickson, 921 F.3d at 826. Eventually, three copyrighted photos owned by the plaintiff were
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`incorporated into the redesigned website. Id. at 827. The photos had been taken from Wells
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`Fargo’s website. The jury found defendant liable for contributory infringement. Id. 831. On
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`appeal, defendant claimed the trial court erred by instructing the jury that “knowledge” for
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`contributory infringement includes having a “reason to know” of the infringement. Id. at 832.
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`Defendant Kast contended that only “actual knowledge” or “willful blindness” are sufficient. Id.
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`The Ninth Circuit noted that defendant had not objected to the jury instruction at trial, and thus
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`reviewed the claim for plain error. Id. The Ninth Circuit upheld the verdict, explaining: “even if
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`the ‘should have known’ instruction was erroneous, the error was not plain” because of the
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`inconsistency in case law on the “knowledge” element as articulated in Luvdarts, LLC v. AT & T
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`Mobility, LLC, 710 F.3d 1068, 1072–73 (9th Cir. 2013) and Louis Vuitton Malletier, S.A. v.
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`Akanoc Solutions, Inc., 658 F.3d 936, 943 (9th Cir. 2011). Id. In Ludvarts, the Ninth Circuit held
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`that “actual knowledge of specific acts of infringement” and “[w]illful blindness of specific facts”
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`are the only two mental states that satisfy the “knowledge” element of contributory infringement.
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`Id. (quoting Ludvarts, 710 F.3d at 1072-73). In Louis Vuitton, the Ninth Circuit cited with
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`3 Harrington appears to acknowledge, however, that actual knowledge of specific infringement is
`the standard for a finding of liability. Opp’n at 15.
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`ORDER GRANTING MOTION TO DISMISS COUNTS II AND III OF PLAINTIFF’S FIRST
`AMENDED COMPLAINT
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`approval a “know or have reason to know” instruction. Louis Vuitton, 658 F.3d at 943 (citing
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`Napster, 239 F.3d at 1020). The Erickson court declined to resolve the apparent tension between
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`Ludvarts and Louis Vuitton. Erickson, 921 F.3d at 832. Thus, Erickson did not hold that the
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`“should have known” standard is correct.
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`In Napster, the Ninth Circuit suggested that the “knowledge” element of contributory
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`infringement could, under some circumstances, be satisfied with evidence of constructive
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`knowledge. Id. at 1020-21. However, the Court explained that if a defendant’s equipment is
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`capable of both infringing and “substantial noninfringing uses,” then knowledge cannot be
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`imputed. See id. (“[A]bsent any specific information which identifies infringing activity,
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`computer system operator cannot be liable for contributory infringement merely because the
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`structure of the system allows for the exchange of copyrighted material.”). The Naptser court
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`stated, “if a computer system operator learns of specific infringing material available on his
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`system and fails to purge such material from the system, the operator knows of and contributes to
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`direct infringement.” Id. at 1021. The Napster court concluded that Napster materially
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`contributed to infringement because Napster knew of the availability of infringing music files,
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`assisted users in accessing such files, and failed to block access to such files. Id. at 1022.4
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`Following Napster, in Amazon, the Ninth Circuit stated that “a service provider’s knowing
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`failure to prevent infringing actions could be the basis for imposing contributory liability. Under
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`such circumstances, intent may be imputed.” Amazon, 508 F.3d at 1172. The Ninth Circuit
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`recognized that service or products that facilitate access to websites throughout the world can
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`significantly magnify the effects of infringing activities; that the argument for imposing indirect
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`liability is “particularly powerful” when individuals using defendant’s software could make a huge
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`number of infringing downloads every day; and that copyright holders cannot protect their rights
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`4 In Napster, the evidence of constructive knowledge consisted of the following: (a) Napster
`executives had recording industry experience; (b) they had enforced intellectual property rights in
`other instances; (c) Napster executives had downloaded copyrighted songs from the system; and
`(d) they had promoted the site with “screen shots listing infringing files.” Id. at 1020 n.5.
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`Case No.: 5:20-cv-05290-EJD
`ORDER GRANTING MOTION TO DISMISS COUNTS II AND III OF PLAINTIFF’S FIRST
`AMENDED COMPLAINT
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`in a meaningful way unless they can hold the providers of such services liable pursuant to the test
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`in Napster. Id. (citation omitted). Accordingly, the Ninth Circuit held that “a computer system
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`operator can be held contributorily liable if it ‘has actual knowledge that specific infringing
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`material is available using its system’ . . . and can ‘take simple measures to prevent further
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`damage’ to copyrighted works, . . . yet continues to provide access to infringing works.” Amazon,
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`508 F.3d at 1172 (citations omitted); see also Giganews, 847 F.3d at 671.
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`More recently, in Davis v. Pinterest, Inc., 2021 WL 879798, at *3 (N.D. Cal. Mar. 9,
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`2021), the court considered the very argument Harrington presents in this case against Pinterest:
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`whether allegations that a defendant had “reason to know” of the infringement are sufficient to
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`plead a claim for contributory copyright infringement. After carefully reviewing Erickson and
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`Napster, the Davis court was unpersuaded, stating “knowledge for purposes of contributory
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`infringement must be of specific infringing material.” Id. (citing Amazon, 508 F.3d at 1172 and
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`Giganews, 847 F.3d at 671). Further, the Davis court stated, “[e]ven assuming the Ninth Circuit
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`left open the possibility that constructive knowledge may be sufficient in some circumstances,”
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`plaintiff failed to allege a cognizable contributory copyright infringement claim. Id. (“Although
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`the amended complaint identifies various instances where Plaintiff claims his photographs are
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`available on Defendant’s website, . . . , it does not allege that Defendant knew or had reason to
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`know of these examples. And while the complaint asserts that Plaintiff contacted both
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`Defendant’s CEO and its Intellectual Property Operations Manager regarding misuse of his
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`photographs generally, . . . those notices did not identify any specific acts of infringement.”)
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`(citations omitted).
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`Here, Harrington’s claim fails for the same reason the claim failed in Davis. The FAC
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`lacks sufficient facts to plausibly allege Pinterest had knowledge—actual or constructive—of
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`specific infringing material. Harrington identifies two specific examples of his photographs
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`appearing on Pinterest and alleges that they were improperly copied for commercial use. FAC ¶¶
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`81-82. Harrington, however, nowhere alleges that Pinterest knew or had reason to know that these
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`Case No.: 5:20-cv-05290-EJD
`ORDER GRANTING MOTION TO DISMISS COUNTS II AND III OF PLAINTIFF’S FIRST
`AMENDED COMPLAINT
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`two photographs were on Pinterest, much less that Pinterest knew or had reason to know that these
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`photographs were infringing. Harrington does not allege that he ever notified Pinterest about these
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`two instances of alleged infringement or any other instances of infringement of his other Works.
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`At most, Harrington alleges that photographers contacted senior management at Pinterest
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`regarding improper copying of photographs generally and that Pinterest is “aware its websites and
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`app are used by third parties to infringe registered copyrights.” FAC ¶¶ 74-75. Generalized
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`knowledge, however, is insufficient. Amazon, 508 F.3d at 1172; Giganews, 847 F.3d at 670.
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`“[M]ore than a generalized knowledge by the [defendant] of the possibility of infringement” is
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`required to allege contributory infringement. Luvdarts, 710 F.3d at 1072; see also ALS Scan, Inc
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`v. Steadfast Networks, LLS, 819 Fed. Appx. 522, 524 (9th Cir. 2020) (“The number of notices that
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`Steadfast previously received gives at most a general knowledge that infringement will likely
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`occur again in the future; this does not give notice of any specific acts of infringement that are
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`actually occurring.”).
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`Harrington argues in the alternative that “willful blindness” is sufficient to support a claim
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`for contributory copyright infringement. However, even under this standard, a plaintiff must
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`allege “[w]illful blindness of specific facts.” Ludvarts, 710 F.3d at 1073. To allege willful
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`blindness, a plaintiff must allege the defendant “(1) subjectively believed that infringement was
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`likely occurring” and “(2) took deliberate actions to avoid learning about the infringement.” Id.
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`(citing Global–Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754 (2011)). Harrington does not
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`allege that Pinterest subjectively believed his Works were likely being infringed and then took
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`deliberate actions to avoid learning about infringement of his Works. Indeed, Harrington does not
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`allege that he ever informed Pinterest of a single instance of infringement of his Works. Nor does
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`Harrington allege facts to suggest Pinterest had reason to know of infringement of Harrington’s
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`Works. Generalized complaints from other photographers about infringement of their works does
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`not show Pinterest’s “willful blindness” to infringement of Harrington’s Works.
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`Lastly, Harrington contends that his contributory infringement claim cannot be rejected on
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`Case No.: 5:20-cv-05290-EJD
`ORDER GRANTING MOTION TO DISMISS COUNTS II AND III OF PLAINTIFF’S FIRST
`AMENDED COMPLAINT
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` 8
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`Northern District of California
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`United States District Court
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`a motion to dismiss “simply because he has not alleged ‘actual knowledge of specific acts of
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`infringement.” Opp’n at 16. He reasons that his allegations, when construed in the light most
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`favorable to him, meet the constructive knowledge requirement of a contributory infringement
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`claim and the “willful blindness” standard. Id. The argument is unpersuasive. A Rule 12(b)(6)
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`motion is a proper procedure for testing the legal sufficiency of a claim at the pleading stage. See
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`e.g., Ludvarts, 710 F.3d at 1073 (affirming dismissal of contributory infringement claim under
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`Rule 12(b)(6) because the plaintiffs had failed to allege adequately that defendants had the
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`necessary specific knowledge of infringement); Epikhin v. Game Insight N. Am., 2015 WL
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`2412357, at *4 (N.D. Cal. May 20, 2015) (dismissing contributory infringement claim under Rule
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`12(b)(6) because plaintiffs did not allege any facts in support of the threadbare assertion that
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`defendants “had knowledge of the infringing acts relating to Plaintiffs’ copyrighted works).
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`For the reasons stated above, Harrington has failed to allege sufficient facts to satisfy the
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`knowledge requirement for pleading a claim for contributory copyright infringement. The claim is
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`accordingly dismissed with leave to amend.5
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`B. Count III: Violation of the DMCA
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`Title 17 United States Code section 1202(b)(1) provides: “No person shall, without the
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`authority of the copyright owner or the law . . . intentionally remove or alter any copyright
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`management information . . . knowing, or . . . having reasonable grounds to know, that it will
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`induce, enable, facilitate, or conceal an infringement of any” copyright. 17 U.S.C. § 1202(b)(1).
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`Section 1202(b)(3) provides: “No person shall, without the authority of the copyright owner or
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`the law . . . distribute, import for distribution, or publicly perform works, copies of works, or
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`phonorecords, knowing that copyright management information has been removed or altered
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`without authority of the copyright owner or the law, knowing, or . . . having reasonable grounds to
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`5 Because Harrington has not alleged the requisite knowledge, the Court declines to address at this
`time the parties’ remaining arguments regarding whether Harrington sufficiently alleges Pinterest
`materially contribution or induced the infringement activity.
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`Case No.: 5:20-cv-05290-EJD
`ORDER GRANTING MOTION TO DISMISS COUNTS II AND III OF PLAINTIFF’S FIRST
`AMENDED COMPLAINT
`
` 9
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`Northern District of California
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`United States District Court
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`know, that it will induce, enable, facilitate, or conceal an infringement of any” copyright. Id. §
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`1202(b)(3).
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`For purposes of this motion only, Pinterest assumes that Harrington adequately alleges
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`actual removal of information that qualifies as CMI under the DMCA. Mot. at 14:19-21.
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`Pinterest contends that the DMCA claim must nevertheless be dismissed because mere removal is
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`not actionable and Harrington fails to allege Pinterest “knew” or had “reasonable grounds to
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`know” that any alleged actions regarding CMI “will induce, enable, facilitate, or conceal an
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`infringement.” Id. at 13.
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`The Ninth Circuit has explained that “the mental state requirement in Section 1202(b) must
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`have a more specific application than the universal possibility of encouraging infringement;
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`specific allegations as to how identifiable infringements ‘will’ be affected are necessary.” Stevens
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`v. Corelogic, Inc., 899 F.3d 666, 674 (9th Cir. 2018). This standard does not require a showing
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`that any specific infringement has already occurred. Id. Nor does it “require knowledge in the
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`sense of certainty as to a future act.” Id. Rather, “knowledge in the context of such statutes
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`signifies ‘a state of mind in which the knower is familiar with a pattern of conduct’ or ‘aware of an
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`established modus operandi that will in the future cause a person to engage in’ a certain act.” Id.
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`(quoting United States v. Todd, 627 F.3d 329, 334 (9th Cir. 2010)). “[A] plaintiff bringing a
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`Section 1202(b) claim must make an affirmative showing, such as by demonstrating a past ‘pattern
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`of conduct’ or ‘modus operandi’, that the defendant was aware or had reasonable grounds to be
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`aware of the probable future impact of its actions.” Id.
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`In Stevens, the Ninth Circuit affirmed the grant of summary judgment in favor of the
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`defendant because the plaintiffs failed to offer any evidence that removal of CMI metadata from
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`their photographs would impair their policing of infringement. Stevens, 899 F.3d at 675. The
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`Stevens court noted that there were no allegations, for example, of any plaintiff’s “pattern of
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`conduct” or “modus operandi” involving policing infringement by tracking metadata. Id. The
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`plaintiffs had not averred that they had ever used CMI metadata to prevent or detect copyright
`
`Case No.: 5:20-cv-05290-EJD
`ORDER GRANTING MOTION TO DISMISS COUNTS II AND III OF PLAINTIFF’S FIRST
`AMENDED COMPLAINT
`
` 10
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`Northern District of California
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`United States District Court
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`

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`infringement, much less how they would do so. Id. Further, the plaintiffs did not have evidence
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`that the defendant’s distribution of photographs ever induced, enabled, facilitated or concealed
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`“any particular act of infringement by anyone, let alone a pattern of such infringement likely to
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`recur in the future.” Id. In fact, the plaintiffs failed to identify a single instance in which removal
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`of CMI metadata from any photograph induced, enabled, facilitated, or concealed infringement.
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`Id.
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`Here, Harrington’s allegations, construed in the light most favorable to him, establish
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`nothing more than the “possibility of encouraging infringement.” Id. at 674. Harrington alleges
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`that “[b]y removing the CMI, Pinterest ensures that copyright owners cannot easily identify their
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`works on Pinterest’s website and app, thereby preventing them from submitting to Pinterest
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`comprehensive take down notices.” FAC ¶ 63; see also id. ¶ 64 (Pinterest removes “what would
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`otherwise be easily searchable CMI”). Harrington alleges that he cannot use simple keyword
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`searches to locate his images and instead “must hire services like Pixsy to conduct reverse engine
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`searches, then conduct expensive and/or time-consuming research to track down the infringers.”
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`Id. ¶ 89. Absent, however, are any allegations that he actually used CMI metadata to prevent or
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`detect copyright infringement, much less a “pattern of conduct” or “modus operandi” by him
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`involving policing infringement by tracking metadata. Rather, Harrington alleges that he
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`successfully removed unauthorized use of two of his Works on Pinterest “by engaging an attorney
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`and making a cease and desist demand.” FAC ¶¶ 82, 85. “[A] plaintiff bringing a Section
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`1202(b)(1) claim must offer more than a bare assertion that ‘when CMI metadata is removed,
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`copyright infringement plaintiffs . . . lose an important method of identifying a photo as
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`infringing.’” Stevens, 899 F.3d at 675.
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`To plead a claim under Section 1202(b), a plaintiff must allege sufficient facts to show
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`“defendant knows or has a reasonable basis to know that the removal or alteration of CMI or the
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`distribution of works with CMI removed will aid infringement.” Stevens, 899 F.3d at 675
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`(emphasis in original). Harrington does not allege any facts to show that Pinterest’s alleged
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`Case No.: 5:20-cv-05290-EJD
`ORDER GRANTING MOTION TO DISMISS COUNTS II AND III OF PLAINTIFF’S FIRST
`AMENDED COMPLAINT
`
` 11
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`Northern District of California
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`United States District Court
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`

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`Case 5:20-cv-05290-EJD Document 39 Filed 09/03/21 Page 12 of 12Case 1:21-cv-21698-DPG Document 31-1 Entered on FLSD Docket 09/08/2021 Page 13 of 13
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`distribution of photographs induced, enabled, facilitated or concealed any particular act of
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`infringement by anyone, let alone a pattern of such infringement likely to recur in the future.
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`Instead, Harrington’s FAC contains vague and conclusory allegations that Pinterest is the source
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`of “rampant” copyright infringement by third parties. FAC ¶ 73. The Court “does not have to
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`accept as true conclusory allegations in a complaint or legal claims asserted in the form of factual
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`allegations.” In re Tracht Gut, LLC, 836 F.3d 1146, 1150-51 (9th Cir. 2016) (citing Bell Atl.
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`Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).
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`Harrington contends that Stevens is inapplicable because it was decided in the context of a
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`summary judgment motion, not a motion to dismiss. But regardless of the procedural posture,
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`Stevens sets forth the legal standards for a Section 1202(b) claim. To survive a Rule 12(b)(6)
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`motion to dismiss, a complaint must contain sufficient facts, which accepted as true, state a
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`plausible claim. Ashcroft, 556 U.S. at 678. The FAC fails to do so.
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`IV. CONCLUSION
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`For the reasons stated above, Pinterest’s motion to dismiss Counts II and III of the FAC is
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`GRANTED. Although Harrington has amended his complaint once already, the Court will
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`GRANT him one last opportunity to amend. Harrington may file and serve an amended complaint
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`no later than September __, 2021.
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`IT IS SO ORDERED.
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`Dated: September 3, 2021
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`
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`______________________________________
`EDWARD J. DAVILA
`United States District