Appellate Case: 24-4045 Document: 67-1 Date Filed: 04/18/2025 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`April 18, 2025
`
`Christopher M. Wolpert
`Clerk of Court
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`VICTORIA SETHUNYA,
`
` Plaintiff - Appellant,
`
`v.
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`TIKTOK, INC.; C3780792 TIKTOK,
`INC.; META PLATFORMS, INC.;
`FACEBOOK, INC.,
`
` Defendants - Appellees.
`_________________________________
`
`
`
`
`
`No. 24-4045
`(D.C. No. 2:22-CV-00678-JNP)
`(D. Utah)
`
`ORDER AND JUDGMENT*
`_________________________________
`
`Before MORITZ, EID, and FEDERICO, Circuit Judges.
`_________________________________
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`Victoria Sethunya, appearing pro se, appeals the district court’s judgment in
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`favor of defendants on her copyright-infringement and tort claims. Exercising
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`jurisdiction under 28 U.S.C. § 1291, we affirm.
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`* After examining the briefs and appellate record, this panel has determined
`unanimously that oral argument would not materially assist in the determination of
`this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
`ordered submitted without oral argument. This order and judgment is not binding
`precedent, except under the doctrines of law of the case, res judicata, and collateral
`estoppel. It may be cited, however, for its persuasive value consistent with
`Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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`
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`

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`Appellate Case: 24-4045 Document: 67-1 Date Filed: 04/18/2025 Page: 2
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`I. Background
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`Sethunya created a video and posted it on TikTok and Instagram. TikTok is an
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`internet-based social-media platform provided by defendant TikTok, Inc., and
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`Instagram is an internet-based social-media platform provided by defendant Meta
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`Platforms, Inc. (formerly Facebook, Inc.) (“Meta”). Users of these platforms
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`incorporated content from Sethunya’s video into their own videos without Sethunya’s
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`permission. Sethunya asked TikTok and Meta to stop this unauthorized use of her
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`content, claiming it infringed her copyright in the video. Defendants deleted some of
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`the videos but not all.
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`Sethunya then filed this action pro se. In the operative second amended
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`complaint (“SAC”), she asserted defendants were liable for copyright infringement.
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`She also advanced claims against TikTok sounding in tort based on allegations that
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`TikTok’s users racially and sexually harassed her when commenting on her
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`live-stream videos.
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`TikTok filed a motion under Federal Rule of Civil Procedure 12(b)(6) seeking
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`to dismiss the SAC for failure to state a claim to relief. TikTok argued that Sethunya
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`authorized the allegedly infringing uses of her video when she agreed to TikTok’s
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`terms of service, which granted TikTok and its users an irrevocable, non-exclusive
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`license to use, download (users only), modify, adapt, reproduce, make derivative
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`works of, publish, transmit, and distribute her user content, see R. vol. I at 74.
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`TikTok also argued that section 509 of the Communications Decency Act of 1996
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`(“CDA”), 47 U.S.C. § 230, barred Sethunya’s claims based on comments by
`2
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`Appellate Case: 24-4045 Document: 67-1 Date Filed: 04/18/2025 Page: 3
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`TikTok’s users, and that Sethunya failed to allege sufficient facts to state a claim to
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`relief regarding the comments posted by other users.
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`A magistrate judge recommended that the district court dismiss the copyright
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`claim against TikTok based on the license Sethunya had granted when she agreed to
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`TikTok’s terms of service. The magistrate judge rejected Sethunya’s arguments that
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`she lacked capacity to enter into a contract due to her post-traumatic stress disorder
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`and that TikTok’s terms of service violate federal law because they require users to
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`violate the law.1 The magistrate judge also recommended declining to exercise
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`supplemental jurisdiction over any state law claims against TikTok because Sethunya
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`failed to allege sufficient facts to establish diversity jurisdiction over such claims
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`under 28 U.S.C. § 1332.
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`Meta also filed a Rule 12(b)(6) motion to dismiss. Meta argued that Sethunya
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`authorized the allegedly infringing uses of her video when she agreed to Instagram’s
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`terms of service, which granted Meta a “non-exclusive . . . license to host, use,
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`distribute, modify, run, copy, publicly perform or display, translate, and create
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`derivative works of [her] content” until it was “deleted from [Meta’s] systems,”
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`R. vol. I at 145. Meta also argued that Sethunya failed to plead sufficient facts to
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`overcome the safe-harbor provision of section 202(c) of the Digital Millenium
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`Copyright Act, 17 U.S.C. § 512(c), and that she failed to show Meta was actually
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`involved in the alleged infringement other than by merely operating Instagram.
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`1 Because the license was a sufficient basis for recommending dismissal of the
`copyright claim, the magistrate judge declined to address TikTok’s CDA argument.
`3
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`Appellate Case: 24-4045 Document: 67-1 Date Filed: 04/18/2025 Page: 4
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`The magistrate judge converted Meta’s motion to dismiss to a motion for
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`summary judgment under Federal Rule of Civil Procedure 56 and recommended
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`granting summary judgment on the copyright claim based on the license Sethunya
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`had granted Meta when she agreed to Instagram’s terms of service. The magistrate
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`judge rejected Sethunya’s arguments that she lacked capacity to enter into a contract
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`due to her post-traumatic stress disorder and that infringement occurred when others
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`posted her video on Instagram before she did. In the alternative, the magistrate judge
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`recommended dismissal of the copyright claim based on § 512(c)’s safe-harbor
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`provision.2 The magistrate judge also recommended declining to exercise
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`supplemental jurisdiction over any state law claims Sethunya may have raised against
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`Meta because Sethunya failed to allege sufficient facts to establish diversity
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`jurisdiction over such claims under 28 U.S.C. § 1332.
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`Sethunya filed objections to the recommendations. The district court noted
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`that Sethunya failed to raise any specific objections to the effect of the licenses the
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`magistrate judge found Sethunya had granted to defendants. The district court
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`therefore reviewed that aspect of the recommendations for clear error and found
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`none.3 Next, the district court treated Sethunya’s argument that diversity jurisdiction
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`2 Because the license and the § 512(c) grounds were sufficient bases for
`recommending summary judgment on the copyright claim, the magistrate judge
`declined to address Meta’s actual-involvement argument.
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` 3
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` Although the district court found that Sethunya raised specific objections to
`the magistrate judge’s recommendation regarding Meta’s § 512(c) defense, the court
`declined to reach that issue because its ruling that the licenses foreclosed Sethunya’s
`4
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`Appellate Case: 24-4045 Document: 67-1 Date Filed: 04/18/2025 Page: 5
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`existed in the district court as a specific objection to the magistrate judge’s
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`recommended disposition of the state law claims against both defendants. The court
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`therefore reviewed that aspect of the recommendations de novo and concluded that
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`Sethunya’s second amended complaint failed to allege facts supporting diversity
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`jurisdiction. For these reasons, the district court granted the defendants’ respective
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`motions. Sethunya timely appealed.
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`II. Standard of review
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`
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`We review de novo a district court’s grant of a Rule 12(b)(6) motion to
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`dismiss and its decision to grant summary judgment. See Albers v. Bd. of Cnty.
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`Comm’rs, 771 F.3d 697, 700 (10th Cir. 2014) (motion to dismiss); Rivero v. Bd. of
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`Regents of Univ. of N.M., 950 F.3d 754, 758 (10th Cir. 2020) (summary judgment).
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`Because Sethunya represents herself, we liberally construe her pro se filings, but we
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`may not act as her advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir.
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`2008).
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`A.
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`Copyright claims
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`III. Discussion
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`As the district court noted, Sethunya failed to raise any specific objections to
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`the court’s ruling that the licenses she granted to defendants required dismissal of, or
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`summary judgment on, her copyright claims. This court has “adopted a firm waiver
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`rule” regarding objections to a magistrate judge’s recommendations. United States v.
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`copyright claim was an independent basis for granting summary judgment on that
`claim.
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`Appellate Case: 24-4045 Document: 67-1 Date Filed: 04/18/2025 Page: 6
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`2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (internal quotation marks
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`omitted). To avoid waiving appellate review of factual and legal questions, “a
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`party’s objections to [a] magistrate judge’s report and recommendation must be both
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`timely and specific.” Id. at 1060 (emphasis added). This means the objection must
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`be “sufficiently specific to focus the district court’s attention on the factual and legal
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`issues that are truly in dispute.” Id. The firm waiver “rule does not apply, however,
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`when (1) a pro se litigant has not been informed of the time period for objecting and
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`the consequences of failing to object, or when (2) the interests of justice require
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`review.” Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005) (italics
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`and internal quotation marks omitted).
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`Although Sethunya filed timely objections to the magistrate judge’s
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`recommendations, we agree with the district court that she did not raise any specific
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`objections to the recommendation to dismiss or grant summary judgment on the
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`copyright claims based on the licenses she granted to defendants. Thus, the firm
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`waiver rule applies unless one of the two exceptions applies. The first exception
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`does not apply because the magistrate judge provided the required warning in each of
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`the recommendations. To satisfy the second exception, Sethunya must show that the
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`district court committed plain error. See id. at 1122 (holding that the “interests of
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`justice standard” includes, at a minimum, plain-error review). “Plain error occurs
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`when there is (1) error, (2) that is plain, which (3) affects substantial rights, and
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`which (4) seriously affects the fairness, integrity, or public reputation of judicial
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`proceedings.” Id. at 1122–23 (internal quotation marks omitted).
`6
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`Appellate Case: 24-4045 Document: 67-1 Date Filed: 04/18/2025 Page: 7
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`Sethunya fails to show plain error. The district court correctly ruled that
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`Sethunya’s copyright claims against both defendants failed because she had granted
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`them non-exclusive licenses that encompass the allegedly infringing uses of her
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`video. See Graham v. James, 144 F.3d 229, 236 (2d Cir. 1998) (“A copyright owner
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`who grants a nonexclusive license to use his copyrighted material waives his right to
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`sue the licensee for copyright infringement.”). Sethunya’s only arguments
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`specifically touching on that ruling are that defendants’ terms of service “are
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`unconscionable and therefore unenforceable,” and that she “did not fully understand
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`what she agreed to when signing up for [their] service[s].” Aplt. Br. at 9.4 These
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`conclusory arguments are wholly inadequate to show plain error in the district court’s
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`ruling. Sethunya has therefore waived appellate review of that ruling. See Becker v.
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`Kroll, 494 F.3d 904, 913 n.6 (10th Cir. 2007) (“An issue or argument insufficiently
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`raised in the opening brief is deemed waived.”).5
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`4 Sethunya also argues that the district court erroneously applied the CDA.
`This argument rests on a misunderstanding of the district court’s ruling. The
`magistrate judge recommended dismissal of the copyright claim against Tiktok based
`on the CDA, but the district court did not rely on this ground because its
`license-based ruling was adequate to dismiss the claim.
`
` Sethunya’s bald attempt to “reaffirm[] her position as articulated in all
`relevant” district court filings, Aplt. Br. at 2, is of no avail. “[T]his court is under no
`obligation to consider arguments not fully set forth in a party’s appellate brief,
`including arguments incorporated by reference to prior pleadings or other materials.”
`United States v. Gordon, 710 F.3d 1124, 1137 n.15 (10th Cir. 2013) (internal
`quotation marks omitted). We take this path here, declining to consider any
`arguments Sethunya purports to assert through incorporation by reference to her
`district court filings, whether bearing on the disposition of her copyright claims or
`otherwise.
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` 5
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`Appellate Case: 24-4045 Document: 67-1 Date Filed: 04/18/2025 Page: 8
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`B.
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`State law claims
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`Sethunya raises no argument that the district court erred in dismissing her state
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`law claims based on her failure to allege any facts in the SAC establishing diversity
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`jurisdiction under 28 U.S.C. § 1332. She has therefore waived appellate review of
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`that ruling. See Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020) (“Issues
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`not raised in the opening brief are deemed abandoned or waived.” (internal quotation
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`marks omitted)).
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`C. Other arguments
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`Sethunya raises two general claims of error. She argues the district court
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`ignored “critical evidence (such as emails or recordings) that directly supported [her]
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`claims.” Aplt. Br. at 11; see also id. at 13 (substantially the same). But she does not
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`identify any of that evidence or explain how it would have altered the district court’s
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`disposition of her claims. She also contends the district court ignored
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`“contract-related issues such as [f]raud or [m]isreprentation[] and [i]mpossibility of
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`[p]erformance” she says she raised “multiple times.” Id. at 11. But she does not
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`develop this argument either. She has therefore waived our review of these
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`arguments. See Becker, 494 F.3d at 913 n.6.
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`Sethunya also advances multiple new claims, including that defendants
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`violated her right to privacy and publicity, breached their contractual obligations
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`regarding data protection and privacy or otherwise failed to protect her personal
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`information and privacy, negligently monitored harmful content, and violated
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`consumer protection laws. Because she did not raise these claims in the SAC, she “is
`8
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`Appellate Case: 24-4045 Document: 67-1 Date Filed: 04/18/2025 Page: 9
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`barred from raising [them] on appeal.” Callahan v. Poppell, 471 F.3d 1155, 1161
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`(10th Cir. 2006). Moreover, her attempt to advance these claims on appeal is wholly
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`conclusory, so she has waived our review of them. See Becker, 494 F.3d at 913 n.6.
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`IV. Conclusion
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`We affirm the district court’s judgment. We deny as moot Sethunya’s request
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`for an injunction pending appeal, which she embedded in her appellate brief. We
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`deny her Motion to Request a Partial Seal and Submit Only Redacted Documents
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`because the documents she seeks to seal or redact either are already redacted in the
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`manner she requests, do not implicate an adequate privacy interest, exist in
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`unredacted form in the district court, are public records or videos posted on TikTok
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`or Instagram, or do not appear to exist in the record before this court. See Eugene S.
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`v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1135–36 (10th Cir. 2011)
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`(to overcome presumption against sealing, “the parties must articulate a real and
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`substantial interest that justifies depriving the public of access to the records that
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`inform our decision-making process” (internal quotation marks omitted)). We deny
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`as moot Sethunya’s request that the court waive the requirement that she submit USB
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`thumb drives containing video files because the court already has the files.
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`Entered for the Court
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`Nancy L. Moritz
`Circuit Judge
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`9
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