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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`SUMI KIM,
`Plaintiff,
`v.
`OPENAI INC., X CORP., GOOGLE LLC,
`MICROSOFT CORPORATION, ANTHROPIC
`PBC, AMAZON.COM INC.,
`MASSACHUSETTS INSTITUTE OF
`TECHNOLOGY, STANFORD UNIVERSITY,
`META PLATFORMS, INC.,
`Defendants.
`
`
` Civil Action No.: 1:25-cv-1258 (PTG/IDD)
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`OPENAI, INC.’S OPPOSITION TO PLAINTIFF’S
`EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER
`Defendant OpenAI, Inc. (“OpenAI”) respectfully requests that, for the reasons included
`herein as well as those already addressed by other defendants at ECF No. 25, the Court deny
`Plaintiff Sumi Kim’s (“Plaintiff”) motion for a temporary restraining order (“TRO”). ECF No. 3.
`As a threshold matter, Plaintiff has failed to establish personal jurisdiction over OpenAI in this
`District. That alone is fatal to her TRO motion (as well as her claims). Plaintiff has also failed to
`establish that any of the factors necessary to justify the extraordinary remedy of a TRO exist here.
`Her motion should therefore be denied. See Pierce v. N. C. State Bd. of Elections, 97 F.4th 194,
`209 (4th Cir. 2024).
`I. PLAINTIFF HAS NOT ESTABLISHED PERSONAL JURISDICTION OVER
`OPENAI IN VIRGINIA
`Plaintiff has failed to satisfy her burden to establish personal jurisdiction over OpenAI.
`Jordan v. Josey -Herring, No. 1:23 -cv-130, 2023 WL 8534631, at *1 (E.D. Va. Sept. 29, 20 23)
`(Giles, J.). Plaintiff’s allegations do not establish that the court has general jurisdiction because
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`she does not allege that OpenAI is “at home” in Virginia, as is required. See Ford Motor Co. v.
`Mont. Eighth Jud. Dist. Ct., 592 U.S. 351, 358 (2021).1 Nor can she. Corporations are considered
`“at home” in their “place of incorporation” and at their “principal place of business.” Id. at 359.
`OpenAI is incorporated in Delaware,2 with its principal place of business in California.3 Plaintiff
`also fails to allege that OpenAI engaged in any conduct at issue in this case in Virgina, and so she
`has not established that the court has specific jurisdiction over OpenAI either. Walden v. Fiore,
`571 U.S. 277, 283 (2014); see, e.g., Jordan, 2023 WL 8534631, at *2 (dismissing for lack of
`personal jurisdiction when “Plaintiffs fail[ed] to allege any relevant contacts with or conduct
`occurring in Virginia whatsoever”). Given Plaintiff’s failure to establish this Court’s jurisdiction
`over OpenAI, her request for a TRO must be denied. See, e.g., Evapco, Inc. v. Mech. Prods. Sw.,
`LLC, No. 22 -cv-3375, 2023 WL 361131, at *3 (D. Md. Jan. 23, 2023) (“[W]ithout personal
`jurisdiction over [the defendant], the Court cannot grant injunctive relief against it.”); Ferraro v.
`Rodgers, No. 7:24 -cv-833, 2025 WL 938995, at *1 –2 (E.D.N.C. Mar. 27, 2025) (denying TRO
`given doubts about personal jurisdiction).
`II. PLAINTIFF IS NOT ENTITLED TO A TEMPORARY RESTRAINING ORDER
`Plaintiff’s motion for a TRO also fails on the merits. Pursuant to Federal Rule of Civil
`Procedure 10(c), OpenAI adopts and joins the Opposition to Plaintiff’s Emergency Motion for
`Temporary Restraining Order filed by Defendants Amazon.com, Inc., Microsoft Corporation, and
`Google LLC at ECF No. 25, the substance of which OpenAI has also included below.
`
`1 Internal quotation marks and citations omitted throughout.
`2 See OpenAI, Inc. (5902936), Entity Search , Del. Dep’t of State: Div. of Corps.,
`https://icis.corp.delaware.gov/ecorp/entitysearch/NameSearch.aspx (last visited Sept. 16, 2025);
`see also In re Ironnet, Inc., No. 1:22-cv-449, 2023 WL 5110932, at *4 n.7 (E.D. Va. Aug. 9, 2023)
`(observing that government websites are judicially noticeable).
`3 See OpenAI, Inc. (3858313), Business Search, Cal. Sec’y of State,
`https://bizfileonline.sos.ca.gov/search/business (last visited Sept. 16, 2025).
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`A “temporary restraining order[]” is an “‘extraordinary remed[y] involving the exercise of
`a very far-reaching power to be granted only sparingly and in limited circumstances.’” Sarsour v.
`Trump, 245 F. Supp. 3d 719, 728 (E.D. Va. 2017). “[T]he party seeking such relief must
`demonstrate”—“by a clear showing”—“each of the following factors: (1) the likelihood of success
`on the merits; (2) the likelihood of irreparable harm in the absence of preliminary injunctive relief;
`(3) the balance of equities between the parties tips in favor of the party seeking such relief; and,
`(4) granting the injunction is in the public interest.” Johnson v. Henrico Cnty. Bd. of Supervisors,
`751 F. Supp. 3d 627, 638 (E.D. Va. 2024). 4 “The failure to show any one of the relevant factors
`mandates denial of the preliminary injunction.” Smith v. Miller, No. 23-cv-317, 2025 WL 848448,
`at *3 (E.D. Va. Mar. 18, 2025).5
`Here, Plaintiff has failed to show that any of the requisite factors support the issuance of a
`TRO. And although Plaintiff’s complaint “may represent the work of an untutored hand requiring
`special judicial solicitude, a district court is not required to recognize obscure or extravagant claims
`defying the most concerted efforts to unravel them.” Akerman v. Hamel, No. 24-cv-1284, 2024
`WL 4845992, at *1 (E.D. Va. Nov. 20, 2024). In other words, “the principle of liberal construction
`does not require [district court judges] to conjure up questions never presented to them.” Stratton
`v. Mecklenburg Cnty. Dep’t of Soc. Servs., 521 F. App’x 278, 291 (4th Cir. 2013).
`A. There Is No Likelihood of Success on the Merits
`Plaintiff contends that, as to her likelihood of success on the merits, she has “presented
`multiple forms of verified evidence . . . showing direct and ongoing infringement.” ECF No. 3 at
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`4 “The standard for granting either a TRO or a preliminary injunction is the same.” Moore v.
`Kempthorne, 464 F. Supp. 2d 519, 525 (E.D. Va. 2006).
`5 Plaintiff’s waiver of oral argument, see ECF No. 5—which, along with the request for a TRO,
`was submitted to the Court without any conferral with any defendants—belies the suggestion that
`emergency relief is necessary here.
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`2. In the first instance, it is somewhat unclear what form of intellectual property right Plaintiff is
`claiming was infringed. The Complaint makes reference to both copyright and patent. See, e.g.,
`ECF No. 1 at 3. But Plaintiff has since stated that her “claims in this action are grounded in
`copyright, trade secret, and contractual protections” and that she did not reference “provisional
`patent applications” “for a stand -alone patent infringement cause of action.” ECF No. 13 at 1. 6
`So far as OpenAI can tell, then, the only question presented to the Court as to the likelihood of
`success on the merits is whether Plaintiff has established a likelihood of succeeding on her
`copyright infringement claim.7 She has not.
`To prevail on a claim for copyright infringement, a plaintiff must prove (a) ownership of a
`valid, registered copyright, and (b) “that the defendant copied original elements of” the registered
`copyrighted work at issue. Softech Worldwide, LLC v. Internet Tech. Broad. Corp., 761 F. Supp.
`2d 367, 371 (E.D. Va. 2011) ; see also Fourth Est. Pub. Benefit Corp. v. Wall -Street.com, LLC,
`586 U.S. 296, 306 (2019) (copyright “registration must precede an infringement suit”); Crouch v.
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`6 Even if Plaintiff had not disclaimed a claim of patent infringement, she could not prevail on the
`merits as she admits that she has not asserted a registered patent. A provisional patent application,
`like those asserted by Plaintiff, “is not a patent and includes no enforceable claims.” U.S. Well
`Servs., LLC v. Liberty Energy, Inc. , No. 24-cv-00839, 2025 WL 1886774, at *4 (S.D. Tex. June
`17, 2025); see also Carlucci v. Han, 907 F. Supp. 2d 709, 729 (E.D. Va. 2012) (“[A] provisional
`patent application constitutes a filing from which a patent does not actually issue.”). Indeed, as
`OpenAI will argue in its forthcoming motion to dismiss, and as the various defendants have already
`explained, Plaintiff has failed to state any claim upon which relief can be granted. See ECF Nos.
`40, 41, 43, 53.
`7 Plaintiff does not contend that she is likely to succeed on the merits with respect to anything other
`than allegedly “ongoing infringement.” See ECF No. 3 at 2. In other words, to the extent Plaintiff
`contends she is also pursuing claims related to “trade secret” and “contractual protections,” she
`has not contended that she is likely to succeed on the merits of such claims. See id. In fact, her
`pleadings contain nothing more than a passing reference to “trade secret” and say nothing about
`“contractual protections.” The pleadings say nothing about the existence of a trade secret let alone
`contend that any trade secret was misappropriated, how, or by whom. Likewise, as to “contractual
`protections,” Plaintiff does not allege that she has a contractual agreement with any defendant,
`much less that any such contract was breached.
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`Wu, No. 24-cv-114, 2024 WL 5415049, at *4 (E.D. Va. July 9, 2024) (“[A] prerequisite to bringing
`a claim under the Copyright Act, whether that be for damages or for injunctive relief, is registration
`of that copyright.”). Here, Plaintiff fails on both fronts.
`First, there are no facts alleged here to support the conclusion that the “ResonanceOS
`system” to which Ms. Kim refers is actually covered by a registered copyright. What Plaintiff says
`is a “U.S. Copyright Registration No.”—1-14963942811—is not a copyright registration number,
`but rather a case number assigned to copyright registration applications. See U.S. Copyright
`Office, Compendium of U.S. Copyright Office Practices § 605.4 (3d ed. 2021) ,
`https://www.copyright.gov/comp3/chap600/ch600-examination-practices.pdf (“The U.S.
`Copyright Office assigns a specific number to each application that it receives, such as ‘1 -
`929700001.’”). And a search of the U.S. Copyright Office’s Public Catalogue of Copyright
`Records generates no results for name or keyword searches for (1) Plaintiff’s name (“Sumi Kim”
`or “Su -Mi Kim”), or ( 2) the name of the company Plaintiff alleges submitted a copyright
`registration application (“HealingwaveA.R.I LLC ” or “Healingwave” ), see ECF 4-14 at 1 . See
`ECF Nos. 25 -1–25-8 (Exs. A –F). A tit le and keyword search for “ResonanceOS” likewise
`generates no results. See ECF Nos. 25-9 & 25-10 (Exs. I & J). OpenAI respectfully requests that
`the Court take judicial notice of those results, which confirm that Plaintiff does not have a
`registered copyright. See Sony Music Ent. v. Cox Commc ’ns, Inc., No. 1:18 -cv-950, 2019 WL
`13298888, at *1 (E.D. Va. Oct. 18, 2019) (“In addition to certificates of registration, United States
`Courts of Appeals recognize that District Courts are free to take notice of facts in the online
`Copyright Catalog.”); see, e.g., Khan v. Google, LLC, No. 2:22-cv-02333, 2024 WL 5220884, at
`*4–5 (C.D. Cal. Dec. 24, 2024).
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`Second, neither the Complaint nor the TRO papers allege facts showing “copying of the
`original elements of the [copyrighted work at issue ] by the defendant .” See Softech Worldwide,
`LLC v. Internet Tech. Broad. Corp. , 761 F. Supp. 2d 367, 371 –72 (E.D. Va. 2011). The papers
`state that this case is about “unauthorized intrusions, misuse, and reverse -engineering attempts
`targeting [her] independently developed system: ResonanceOS.” ECF No. 1 at 2. But with respect
`to the actual conduct Plaintiff says OpenAI engaged in, the filings say nothing more than that
`certain, unnamed Defendants initiated “structural intrusion attempts” including “waveform-based
`CID extraction attempts,” “reverse hash -resonance mapping,” “structural PIO qu eries,” ECF
`No. 4-30 at 1, “semantic rhythm replicators, and alignment feedback,” ECF No. 4-2 at 1.
`It is not clear what those words mean . But what is clear is that they do not suggest, let
`alone establish, that whatever Defendants allegedly did constitutes even a prima facie act of
`copyright infringement. Copyright owners wield only the six enumerated exclusive rights codified
`in 17 U.S.C. § 106. These include the exclusive right s to reproduce a work in copies, to create
`derivative works (a statutorily defined term), to distribute copies of a work, and to publicly display
`and perform the work in various ways. 17 U.S.C. § 106. Plaintiff’s filings seem to be alleging
`that some unidentified actors have engaged in unauthorized access or use of ResonanceOS. See,
`e.g., ECF No. 4-13 at 1 (labeling “[m]ore than 400 structural intrusion attempts” as “Evidence of
`Unauthorized Access,” though not tying this alleged unauthorized access to an y particular
`defendant); ECF No. 1 at 1 (alleging, generally, that this matter involves “misuse” of
`ResonanceOS). But allegations of unauthorized access or use, without more, are not allegations
`of reproduction, or of conduct otherwise reserved exclusively to the copyright owner under Section
`106, and therefore do not state a claim for copyright infringement. See, e.g., Woltz v. Copart, Inc.,
`No. 94-cv-1967, 1994 WL 507631, at *2 (N.D. Cal. Aug. 25, 1994) (allegations of “using copies
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`of the copyright work without permission,” “by themselves, do not constitute copyright
`infringement”); see also Gench v. HostGator.com LLC , No. 14 -cv-3592, 2015 WL 3757120, at
`*11 (S.D.N.Y. June 17, 2015), report and recommendation adopted, 2015 WL 4579147 (S.D.N.Y.
`July 29, 2015) (dismissing copyright infringement claim where plaintiff made “no comprehensible
`allegations that any of the defendants . . . copied the site’s content, produced an infringing work,
`or took any voluntary action to cause an infringing work to be produced”).
`The problems with Plaintiff’s filings do not end there. Another is that, even if part of the
`work-in-suit was indeed copied, the allegations do not on their face support the reasonable
`inference that any allegedly copied elements were elements that copyright law protects at all.
`Many elements of computer software are not protected by copyright law. See Computer Assocs.
`Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 707–08 (2d Cir. 1992). There are no facts alleged here that
`would tend to suggest that, if Defendants’ alleged use of ResonanceOS was conduct that might
`constitute copying in the first instance, such copying encompassed protected elements of
`ResonanceOS as opposed to unprotected elements of the work. And then there is the overarching
`issue that it is altogether unclear from Plaintiff’s filings which defendant is alleged to have done
`what. That is its own independent obstacle to stating a claim, see Andersen v. Stability AI Ltd. ,
`700 F. Supp. 3d 853, 860 (N.D. Cal. 2023), much less obtaining a TRO.
`In short, Plaintiff has not made the clear showing of likelihood of success on the merits
`that is necessary before a TRO can issue. Her request should therefore be denied. See Johnson,
`751 F. Supp. 3d at 638 (“Each factor must be demonstrated by a clear showing,” and “[t]he failure
`to show any one of the relevant factors mandates denial of the preliminary injunction.”); Miller v.
`Garland, 674 F. Supp. 3d 296, 315 (E.D. Va. 2023) (declining “to analyze the other preliminary
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`injunction factors” because “failure to demonstrate likelihood of success on the merits . . . bars a
`TRO preliminary injunction”).
`B. Entry of a TRO Is Otherwise Inappropriate
`Even if the Court were to consider the other factors required for a TRO, the result would
`be the same. Plaintiff offers only vague and conclusory allegations, at best, regarding the other
`requirements for the relief sought and thus fails on those fronts as well. She contends she is
`suffering the following “immediate and irreparable” harm: “Loss of competitive advantage;
`Undermining intellectual property integrity; Threat to personal security and future development;
`Ethical destabilization of public trust in AI collaboration.” ECF No. 1 at 5. Plaintiff does not
`provide any allegations supporting her contention that such alleged harm will, in fact, occur, let
`alone allegations sufficient to make the required “clear showing” that such alleged harm is “neither
`remote nor speculative, but actual a nd imminent.” Scotts Co. v. United Indus. Corp. , 315 F.3d
`264, 283 (4th Cir. 2002). Plaintiff’s contentions regarding the equities and public interest are
`equally conclusory and unsupported, see ECF No. 3 at 2 –3, and thus likewise fail to provide the
`Court with the “clear showing” that must be made before a TRO can issue. See, e.g., Moss v.
`Dotson, No. 2:23-cv-153, 2024 WL 5672992, at *5 (E.D. Va. Oct. 29, 2024) (rejecting request for
`TRO where “Plaintiff’s vague and conclusory allegations fail to state a claim” and the allegations
`did “not come close to establishing any of the other three factors necessary to warrant injunctive
`relief”); see Maaco Franchising, LLC v. Ghirimoldi , No. 15 -cv-99, 2015 WL 4557382, at *3
`(W.D.N.C. July 28, 2015) (“conclusory statements” not enough to “make a clear showing”).
`III. CONCLUSION
`For the foregoing reasons, OpenAI respectfully requests that Plaintiff’s request for a
`temporary restraining order be denied.
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` Dated: September 16, 2025 Respectfully submitted,
` /s/ Cailyn Reilly Knapp
`Cailyn Reilly Knapp (VA Bar No. 86007)
`BAKER BOTTS L.L.P.
`700 K Street, NW
`Washington, DC 20001
`Tel.: (202) 639-7753
`Fax: (202) 585-4070
`Email: cailyn.reilly.knapp@bakerbotts.com
`
`LATHAM & WATKINS LLP
`Andrew M. Gass (pro hac vice)
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`Telephone: (415) 391-0600
`Facsimile: (415) 395-8095
`Email: andrew.gass@lw.com
`
`Sarang V. Damle (pro hac vice)
`Elana Nightingale Dawson (pro hac vice)
`555 Eleventh Street, NW, Suite 1000
`Washington, DC 20004
`Telephone: (202) 637-2200
`Facsimile: (202) 637-2201
`Email: sy.damle@lw.com
`Email: elana.nightingaledawson@lw.com
`
`Counsel for Defendant OpenAI, Inc.
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