`
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
`
`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.
`
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` Civil Action No.: 1:25-cv-1258-PTG-IDD
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`REPLY IN FURTHER SUPPORT OF MOTION TO DISMISS
`BY DEFENDANTS AMAZON.COM, INC.,
`MICROSOFT CORPORATION, GOOGLE LLC, AND ANTHROPIC PBC
`Plaintiff’s Opposition (“Opp.”, ECF 73) does nothing to rebut the incurable deficiencies
`highlighted in Defendants’ Motion to Dismiss at ECF 43. Defendants address the arguments in
`Plaintiff’s Opposition that Defendants were able to discern. The end result is that, as Defendants
`explained in their Motion, the complaint should be dismissed with prejudice.
`A. Plaintiff Has Abandoned Any Non-Copyright Claims
`Plaintiff’s Opposition confirms that Plaintiff’s sole claim is one for copyright infringement.
`The Opposition mentions only Defendants’ copyright arguments, while omitting any discussion of
`patent, trade secret, contract, DMCA, CFAA, Lanham Act, or unjust enrichment. See Mot. to
`Dismiss (ECF No. 43) at 13-16. 1 “Failure to respond to conspicuous, nonfrivolous arguments in
`an opponent’s brief constitutes a waiver of the corresponding claims.” Evans v. City of Lynchburg,
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`1 Citations to court documents correspond to the relevant ECF page number.
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`766 F. Supp. 3d 614, 618 (W.D. Va. 2025) (citing Grayson O Co. v. Agadir Int’l LLC, 856 F.3d
`307, 316 (4th Cir. 2017)). This confirms that the Court should put aside Plaintiff’s references to
`those laws.
`B. Plaintiff’s Copyright Claim Fails
`As to the copyright claim, Plaintiff’s failure to assert a registered copyright is fatal. See
`Mot. to Dismiss at 10-11. As Defendants explained in their Motion, Plaintiff’s allegations indicate
`that, at the time she filed suit, she had at most filed an application for a copyright registration. Id.
`In response, Plaintiff does not dispute that she lacks a copyright registration. Instead, she contends
`that her application for a copyright registration is “under active review.” See Opp. at 2 (contending
`that Plaintiff filed a “reconsideration request” and paid an “appeal fee” with the U.S. Copyright
`Office); 73-1 at 11 (receipt for Plaintiff’s “first reconsideration package,” dated September 12,
`2025). That contention confirms that, when Plaintiff filed suit, she had neither a copyright
`registration nor a decision on her application. Binding precedent mandates dismissal of her
`copyright infringement claim on that basis alone. See 17 U.S.C. § 411(a); Philpot v. Indep. J.
`Review, 92 F.4th 252, 263 (4th Cir. 2024) (“[a] valid copyright registration is required to bring a
`copyright infringement claim”); Fourth Est. Pub. Benefit Corp. v. Wall-Street.com, LLC, 586 U.S.
`296, 306 (2019) (“registration must precede an infringement suit.”).
`In an apparent attempt to overcome this deficiency, Plaintiff now argues, for the first time,
`that her work has received international copyright protection in Canada and the United Kingdom
`(UK), and should therefore receive recognition under the Berne Convention. That contention
`cannot save Plaintiff’s claim from dismissal for three reasons. First, the Complaint does not
`contain any allegations regarding a foreign copyright registration, and it is well established that a
`“court need not consider new allegations or new facts that were available to the plaintiff when it
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`filed the complaint, but were only introduced in an opposition to a defendant’s motion to dismiss.”
`JTH Tax, Inc. v. Williams, 310 F. Supp. 3d 648, 653 (E.D. Va. 2018) (citation and quotation marks
`omitted).2 Second, even if the contentions in Plaintiff’s Opposition had been in the Complaint,
`they would not be sufficient to overcome the registration failure because they do not establish that
`Plaintiff’s work is a “foreign work” rather than a “United States work.” See 17 U.S.C. § 411(a);
`see also id. § 104.3
`Third, regardless of whether the asserted work is a United States work or a foreign work,
`Plaintiff has not plausibly alleged any element of a copyright infringement claim. See Mot. to
`Dismiss at 11-13. She does not address what portions of the work at issue are allegedly original
`or address her failure to allege “that the defendant copied original elements of” the asserted work.
`See ECF 73; see generally Softech Worldwide, LLC v. Internet Tech. Broad. Corp. , 761 F. Supp.
`2d 367, 371 (E.D. Va. 2011). Plaintiff ignores Defendants’ arguments on this point altogether and
`has thereby waived any argument to the contrary. See Mot. To Dismiss at 6-8; Mariah C. v.
`O’Malley, No. 1:23-cv-0811 (LRV), 2024 WL 3092407, at *10 n.9 (E.D. Va. June 20, 2024) (“A
`party waives an argument by failing to present it in its opening brief or by failing to ‘develop [the]
`argument’—even if [the] brief takes a passing shot at the issue.”). Likewise fatal is the
`Complaint’s “shotgun” style pleading, which does not identify which defendant did what—an
`independent reason to dismiss Plaintiff’s claim.
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`2 See also Marks v. Dann, 600 F. App’x 81, 89 (4th Cir. 2015) (“The district court properly deemed
`these matters outside the complaint and refused to consider them as part of its Rule
`12(b)(6) analysis.”); DigitAlb, Sh.a v. Setplex, LLC , 284 F. Supp. 547, 555 (S.D.N.Y. 2018)
`(“should DigitAlb seek to rely on the § 411 registration exemption, it must allege that the works
`are not United States works within the meaning of § 101”).
`3 Plaintiff’s filings consistently connect her claim to a Virginia address. See, e.g., ECF 1 at 4-5;
`ECF 3 at 1; ECF 30 at 2; ECF 69 at 1. Indeed, that appears to be the very basis for jurisdiction and
`venue in this District. See ECF 1-2.
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`Finally, Plaintiff’s Opposition gives no indication that she could provide greater clarity on
`any of these fatal flaws in a revised pleading. Accordingly, dismissal with prejudice is warranted.
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`Dated: September 22, 2025 Respectfully submitted,
`
`/s/___Libby Weingarten____________
`Libby Weingarten (VA Bar No. 85945)
`Edward Percarpio (pro hac vice forthcoming)
`WILSON SONSINI GOODRICH & ROSATI
`1700 K Street, NW, Fifth Floor
`Washington, DC 20006
`Telephone: 202 973 8898
`Email: lweingarten@wsgr.com
`Email: epercarpio@wsgr.com
`
`Counsel for Defendant Google LLC
`
`/s/_____ Lora A. Brzezynski _________
`Lora A. Brzezynski (VA Bar No. 36151)
`Brian A. Coleman (VA Bar No. 41352)
`FAEGRE DRINKER BIDDLE &
`REATH LLP
`1500 K Street, NW
`Washington, DC 20005
`Telephone: (202) 842-8800
`Facsimile: (202) 842-8465
`Email: lora.brzezynski@faegredrinker.com
`Email: brian.coleman@faegredrinker.com
`
`Counsel for Defendant Microsoft Corporation
`
`/s/____ Attison L. Barnes, III _________
`Attison L. Barnes, III (Va. Bar No. 30458)
`David E. Weslow (pro hac vice)
`WILEY REIN LLP
`2050 M St. NW
`Washington, DC 20036
`Tel: (202) 719-7000
`Fax: (202) 719-7049
`Email: abarnes@wiley.law
`Email: dweslow@wiley.law
`
`Counsel for Defendant Anthropic PBC
`
`/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 Amazon.com, Inc.
`Case 1:25-cv-01258-PTG-IDD Document 87 Filed 09/22/25 Page 5 of 5 PageID# 504
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