Long, M.D. v. Dorset — Entry #84: ORDER GRANTING 75 MOTION TO DISMISS SECOND AMENDED COMPLAINT by Judge Phyllis J
Case: Long, M.D. v. Dorset cand · 4:17-cv-02758
filed May 12, 2017
What this document is
Docket entry #84 · filed September 17, 2021
ORDER GRANTING 75 MOTION TO DISMISS SECOND AMENDED COMPLAINT by Judge Phyllis J. Hamilton. (pjhlc2S, COURT STAFF) (Filed on 9/17/2021) (Entered: 09/17/2021)
Who is involved
- Bandha Yoga Publications, LLC
- Facebook, Inc.
- Raymond Long, M.D.
- Tammy Dorset
Why we have it
We follow this case because it names a company we track, although that company is not a party:
- Nebius: its former name “Yandex N.V.” appears in a filing in this case.
…01/22/19 Page 5 of 21 1 Perfect 10, Inc. v. Yandex N.V., 2013 U.S. LEXIS 65802 (N.D. Cal. May…
A free copy from the RECAP archive of federal court filings (mirrored at the Internet Archive), retrieved November 12, 2026. Federal court filings are public records.
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6 page(s), 22,279 characters, converted from the PDF's text layer · plain text.
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Case 4:17-cv-02758-PJH Document 84 Filed 09/17/21 Page 1 of 6
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 RAYMOND LONG, M.D., et al.,
Case No. 17-cv-02758-PJH
8 Plaintiffs,
9 v. ORDER GRANTING MOTION TO
DISMISS SECOND AMENDED
10 TAMMY DORSET, et al., COMPLAINT
11 Defendants. Re: Dkt. No. 75
12
United States District Court
13 Before the court is defendant Facebook, Inc.’s (“defendant”) motion to dismiss
14 plaintiffs Raymond Long, M.D.’s (“Long”) and Bandha Yoga Publications, LLC’s
15 (“Bandha”) (collectively, “plaintiff”) second amended complaint (“SAC”). Dkt. 75. Having
Northern District of California
16 read the parties’ papers and considered their argument and the relevant legal authority,
17 and good cause appearing, the court hereby GRANTS defendant’s motion to dismiss.
18 BACKGROUND
19 This lawsuit is a copyright infringement action brought by plaintiff against
20 defendant and unspecified Doe defendants. It arises out of a hacker’s illicit access to
21 and control of plaintiff’s Facebook page. While in control, the hacker posted on the page
22 various links and images related to plaintiff’s copyrighted material. The parties are
23 familiar with the events giving rise to this action. They are also familiar with its procedural
24 posture. The court will detail its background only as necessary below.
25 DISCUSSION
26 In its first amended complaint (“FAC”), plaintiff alleged seven claims against
27 defendant. Dkt. 27 (FAC) ¶¶ 102-126 (direct, contributory, and vicarious copyright
28 infringement), ¶¶ 167-71 (negligence), ¶¶ 172-74 (aiding and abetting), ¶¶ 175-80
Case 4:17-cv-02758-PJH Document 84 Filed 09/17/21 Page 2 of 6
1 (breach of contract), ¶¶ 181-84 (violation of Business & Professions Code § 17200). For
2 purposes of this order, the court need address only one of the three copyright claims
3 alleged in the FAC—namely, the contributory infringement claim. Id. ¶¶ 109-16.
4 On February 22, 2019, the court dismissed that claim with prejudice. Dkt. 45 at
5 10. Aside from a footnote, id. at 10 n.7, the court did not address whether plaintiff stated
6 a prima facie claim for contributory infringement. The court did not decide whether
7 plaintiff identified communications that it sent to defendant that complied with any take
8 down notice conditions required by the Digital Millennium Copyright Act’s (“DMCA”), Title
9 17 U.S.C. § 512. Instead, the court found that, “regardless of whether plaintiff sent
10 notices that complied with the DMCA’s requirements,” id. at 7, defendant expeditiously
11 removed any infringing material, id. at 9-10. Based on that finding, the court held that the
12 DMCA’s safe harbor applies to the contributory infringement claim. Id. at 10. Plaintiff
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13 appealed. Dkt. 63.
14 On April 23, 2021, the Ninth Circuit issued a memorandum disposition. Dkt. 65.
15 The panel affirmed the court’s dismissal of the contributory infringement claim. Id. at 4. It
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16 held that plaintiff “fail[ed] to plausibly establish that [defendant] actually knew precisely
17 what infringing material was available on Facebook.” Id. The panel based that holding
18 on the FAC’s allegations, the parties’ communications, and the attachments to such
19 communications. Id.1
20 However, the panel then observed that “[t]his defect could theoretically, however,
21 be cured by the allegation of other facts.” Id. (internal quotes and citations omitted). As a
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1 In its opposition, plaintiff states that “[n]othing in the [panel’s] opinion suggests that the
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Panel construed the FAC as alleging that infringing images were posted directly on the
24 Bandha Yoga page that Facebook had the right and ability to control.” Dkt. 80 at 17.
That statement shows that plaintiff misunderstands the panel’s decision. Dkt. 65 at 2
25 (“[Plaintiff] contacted [defendant], and after eight days of email communications,
[defendant] revoked [the hacker’s] administrator access, an action that automatically
26 deleted all of [the hacker’s] posts, including those that contained or linked to
infringing material.”) (emphasis added).
27
Additionally, contrary to plaintiff’s characterization of that decision as “non-precedential,”
28 Dkt. 80 at 17, that decision may qualify as precedential under the law of the case
doctrine. See Ninth Cir. R. 36-3(a).
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Case 4:17-cv-02758-PJH Document 84 Filed 09/17/21 Page 3 of 6
1 primary example, the panel indicated that “if [plaintiff] could plead facts describing a
2 different communication to Facebook that clearly identified a set of specific infringing
3 images on Facebook and, at the same time, clearly indicated his ownership of those
4 specific images, he could state a prima facie claim for contributory infringement, and the
5 burden would then shift to Facebook to prove any affirmative defenses.” Id. at 4-5.
6 The panel then “note[d] that amendment would not necessarily be futile.” Id. at 5.
7 The panel explained that, “[b]ecause an Amended Complaint may plead new facts
8 informing both whether [plaintiff’s] communications satisfied [Title 17 U.S.C.] §
9 512(c)(3)(A) and whether, if so, [defendant’s] response was expeditious,” this court’s
10 holding in its February 22, 2019 order (that the DMCA’s safe harbor applies) “does not
11 provide an independent alternative ground for dismissal with prejudice.” Id. The panel
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then directed this court to permit plaintiff leave to amend. Id. This court did so. Dkt. 67.
13 On July 1, 2021, plaintiff filed its operative second amended complaint. Dkt. 70.
14 On July 29, 2021, defendant filed the instant motion to dismiss. Dkt. 75. In it, defendant
15 proffers two arguments. First, defendant asserts that plaintiff failed to remedy the actual
Northern District of California
16 knowledge defects identified by the panel as necessary to state a prima facie claim for
17 contributory infringement. Second, defendant argues that the DMCA safe harbor applies.
18 Based on the panel’s instructions, it appears that the main question to determine
19 the viability of the contributory infringement claim is whether the SAC alleges a “different
20 communication to defendant” that “clearly identified a set of specific infringing images on
21 Facebook” and “at the same time, clearly indicated his ownership of those specific
22 image.”
23 The court finds that the SAC does not. The court closely reviewed th at amended
24 pleading and compared it to the FAC. It also tediously tallied all communications. In his
25 SAC, plaintiff specifies only the same communications alleged in his FAC.2 Given that,
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2 Compare SAC ¶¶ 45-49 (May 24, 2015 emails and May 24, 2015 and May 25, 2015
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intellectual property (“IP”) reporting forms) with FAC ¶¶ 42-46 (same); Compare SAC ¶
28 52 (May 25, 2015 email using account associated with plaintiff’s Facebook business
page) with FAC ¶ 51 (same); Compare SAC ¶¶ 60-61 (more May 25, 2015 emails) with
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1 plaintiff necessarily failed to identify any new, different communications by it to defendant
2 establishing that defendant had actual knowledge of the specific infringing material.
3 That said, the court notes that the panel’s observation about amendment was
4 illustrative of the sort of new facts that plaintiff could allege to satisfy the actual
5 knowledge element necessary to state a prima face contributory infringement claim. Dkt.
6 65 at 4 (“For instance, if [plaintiff] could plead facts describing a different communication
7 . . .”) (emphasis added). Thus, the court understands that plaintiff may nonetheless show
8 that element by other facts that do not necessarily involve different communications.
9 In its opposition, plaintiff suggests that its newly added allegations at paragraph 59
10 satisfy that element. Dkt. 80 at 26-27. In particular, plaintiff argues that:
11 Contrary to Facebook’s claim that [plaintiff] did not tell
[defendant] “precisely what infringing material was available on
12 [defendant],” . . . [plaintiff] specifically pleads that “[defendant]
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was aware from [plaintiff’s] DMCA notices that everything
13 the [hacker] posted on [plaintiff’s] Bandha Yoga Facebook
page was copyrighted by [plaintiff] and all that material
14 infringed on [plaintiff]’s copyrights.” Id. at 26 (emphasis in
the original).
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Northern District of California
16 To support the portion quoted in bold, plaintiff primarily cites SAC paragraph 59(a).
17 In that paragraph, plaintiff alleges (on information and belief) that defendant maintains
18 certain website “scraping” software that enables defendant to identify “‘new’ material
19 posted onto a website after a specific date.” SAC ¶ 59(a); see also Id. ¶ 59(b)
20 (substantially similar assertion). Plaintiff also parenthetically cites paragraph 59(e). Dkt.
21 80 at 26-27. In that paragraph, plaintiff asserts that he “specifically identified the
22 infringing images” and “supplied a link to his blog showing the ‘source’ of the improperly
23 copied infringing material.” SAC ¶ 59(e). Plaintiff further alleges (on information and
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25
FAC ¶¶ 57-58 (same); Compare SAC ¶¶ 68-71 (May 26, 2015 communications) with
26 FAC ¶ 67-70 (same); Compare SAC ¶¶ 74, 77-78 (May 27, 2015 communications) with
FAC ¶ 72, 75-76 (same); Compare SAC ¶ 81 (May 28, 2015 notices and
27 communications) with FAC ¶ 78 (same); Compare SAC ¶¶ 83-86 (May 29, 2015
communications) with FAC ¶¶ 80-83 (same); Compare SAC ¶ 88 (May 30, 2015 notices)
28 with FAC ¶ 84 (same); Compare SAC ¶ 89 (June 1, 2015 response) with FAC ¶ 85
(same); see also Dkt. 70-1 (redline comparing SAC to FAC).
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1 belief) that defendant has certain “neural network and artificial intelligence” software that
2 permits it to identify and remove potentially infringing material. Id.
3 When ruling on a motion to dismiss, the court does not consider conclusions. It
4 considers only facts. For that reason, the court disregards paragraph 59(e)’s first
5 assertion that he “specifically identified” the infringing material.
6 After applying that basic principle to the above paragraphs, the court finds that
7 their remaining factual allegations fail to plausibly establish that defendant had actual
8 knowledge of the specific infringing material. At best, paragraphs 59(a)’s and 59(e)’s
9 unverified assertions about defendant’s use of “scraping” or other “artificial intelligence”
10 software supports the inference that defendant could become aware of all information
11 posted. That inference does not establish “actual knowledge” (or “awareness,” however
12 put). It also says nothing about defendant’s mental state as it pertains to “precisely what
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13 infringing material was available on Facebook.” Dkt. 65 at 4 (emphasis added).
14 That leaves paragraph 59(e)’s second assertion that plaintiff sent defendant a link
15 to his blog. Plaintiff does not make any attempt to show that such communication was
Northern District of California
16 any different than those already enumerated, considered, and rejected in his FAC.
17 Regardless, even if plaintiff had, defendant’s receipt of a “link” to a blog does not show
18 actual knowledge of any specific infringing material posted on Facebook.
19 Finally, the court observes that the SAC includes one other allegation related to
20 the knowledge element. That allegation appears at paragraph 55. Plaintiff fails to cite
21 that allegation in support of its position on the knowledge issue. To provide this action
22 some long-awaited repose, the court will address it.
23 At paragraph 55, plaintiff alleges that defendant’s May 25, 2015 at 12:28 am
24 communication to plaintiff (first referenced at SAC ¶ 54) shows that defendant
25 “acknowledge[ed] receipt” of plaintiff’s communications and, thus, “was aware” of
26 plaintiff’s purported take down notices. SAC ¶ 55. Perhaps. But plaintiff’s allegati on at
27 paragraph 55 is a new argument, not a new fact. In its FAC, plaintiff identifies that exact
28 same communication. Compare FAC ¶ 53. Thus, the court finds that paragraph 55 does
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1 nothing to cure the actual knowledge defect identified by the panel in its decision.
2 In short, the court concludes that plaintiff failed to cure the actual knowledge
3 defects identified by the panel. As a result, the panel’s conclusion that plaintiff failed to
4 state a prima facie claim for contributory infringement remains con trolling. Separately,
5 because plaintiff has failed to allege any additional facts in the SAC that would alter this
6 court’s February 22, 2019 holding that defendant expeditiously removed any infringing
7 material, the court further concludes that the DMCA safe harbor defense still applies.
8 CONCLUSION
9 For the above reasons, the court GRANTS defendant’s motion to dismiss plaintiff’s
10 second amended complaint. The panel permitted plaintiff the opportunity to amend the
11 contributory infringement claim. The panel clearly instructed plaintiff how it may cure that
12 claim’s defects. Plaintiff failed to remedy such defects. On that basis, the court finds
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13 permitting plaintiff further leave to amend this claim would be futile. Accordingly, the
14 court dismisses this claim with prejudice. Given that, the court notes that all of plaintiff’s
15 claims in this action have been finally adjudicated (at least in this court).
Northern District of California
16 The court will again enter judgment.
17 IT IS SO ORDERED.
18 Dated: September 17, 2021
19 Phyllis J. Hamilton
PHYLLIS J. HAMILTON
20 United States District Judge
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