United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL McSHANE, UNITED STATES DISTRICT JUDGE
filed a claim against Defendant Starr Indemnity &
Liability Co. (“Starr”), among others, for
alleged copyright infringement. See Pl.'s Second
Am. Compl., ECF No. 41 (“SAC”).Defendant moves to
dismiss Plaintiff's claim with prejudice. As discussed
below, Defendant's Motion to Dismiss (ECF No. 106) is
Court previously dismissed a number of civil and criminal
claims that Plaintiff brought against Defendants.
See Op. and Order 2, ECF No. 40. The only remaining
claim against Starr is alleged copyright infringement.
Def.'s Mot. 3-4, ECF No. 106. The copyrighted material
Plaintiff alleges Starr unlawfully used is a flowchart
depicting a process for “encoding sensors or forming a
portion of computer program or product.” Id.
at 5. Starr filed the instant Motion to Dismiss
Plaintiff's SAC on June 19, 2019. Plaintiff has failed to
timely respond. Because Plaintiff has failed to timely
respond, Starr's Unopposed Motion for Extension of Time
to File a Response/Reply, ECF No. 115, is DENIED as moot.
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
complaint must contain sufficient factual matter that
“state[s] a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim is plausible on its face when
the factual allegations allow the court to infer the
defendant's liability based on the alleged conduct.
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The
factual allegations must present more than “the mere
possibility of misconduct.” Id. at 678.
considering a motion to dismiss, the court must accept all
allegations of material fact as true and construe those facts
in the light most favorable to the non-movant. Burget v.
Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663
(9th Cir. 2000). However, “a formulaic recitation of
the elements of a cause of action will not do, ” and
the court is not “bound to accept as true a legal
conclusion couched as a factual allegation.”
Twombly, 550 U.S. at 555. If the complaint is
dismissed, leave to amend should be granted unless the court
“determines that the pleading could not possibly be
cured by the allegation of other facts.” Doe v.
United States, 58 F.3d 494, 497 (9th Cir. 1995).
has failed to state a plausible claim for copyright
infringement. Copyright infringement claims have two basic
elements: “(1) ownership of a valid copyright, and (2)
copying of constituent elements of the work that are
original.” Seven Arts Filmed Entm't, Ltd. v.
Content Media Corp. PLC, 733 F.3d 1251, 1254 (9th Cir.
2013) (quoting Feist Publ'ns, Inc. v. Rural Tel.
Serv. Co., 499 U.S. 340, 361 (1991)). Copyright
protection does not include “any idea, procedure,
process, system, method of operation, concept,
principle, or discovery, regardless of the form in which it
is described, explained, illustrated, or embodied in such
work.” 17 U.S.C. § 102(b) (emphasis added).
Rather, copyright only affords protection to “the
expression of the idea-not the idea itself.” Rosado
v. Roman, 2017 WL 3473177, at *5 (D. Or. Aug. 11, 2018)
(quoting Mazer v. Stein, 347 U.S. 201, 217 (1954)).
Court has previously noted that Plaintiff's copyright
infringement claim is unclear. Op. and Order 5. As Starr
points out, Plaintiff alleges that Defendants made use of the
“ideas or processes embodied in” the flowchart
but “does not allege that [they] copied or
reproduced” it. Def.'s Mot. 3. Even taking
Plaintiff's allegations as true, she fails to make a
plausible claim for copyright infringement.
Feist Publ'ns Inc. v. Rural Tel. Serv. Co.,
Rural copyrighted its phone directory and refused Feist the
right to copy the information in its white pages, yet Feist
copied the information anyway. 499 U.S. at 342-43. The
Supreme Court stated that “[t]he most fundamental axiom
of copyright law is that ‘[n]o author may copyright his
ideas or the facts he narrates.'” Id. at
344-45 (quoting Harper & Row, Publishers, Inc. v.
Nation Enterprises, 471 U.S. 539, 556 (1985)). The
Feist Court further noted that Rural's
alphabetical arrangement of its listings was not sufficiently
original to transform the white pages from a mere compilation
of facts into a copyrightable expression of those facts.
Id. at 362. Ultimately, Rural failed to prove the
second element of its copyright infringement claim because it
failed to appreciate the idea-expression dichotomy.
Plaintiff also fails to appreciate the idea-expression
dichotomy and likewise fails to sufficiently allege the
second element of her copyright infringement claim. She seeks
to enforce copyright of a process-a right that courts do not
recognize. See 17 U.S.C. § 102(b). Her
copyright protects the flowchart itself, not the ideas or
processes that it embodies, and she does not allege that
Starr has reproduced the flowchart's image.
Plaintiff's untimely “Rebuttal” suggests that
Starr and its codefendants infringed her copyright by using
her flowchart to “make transformative works”
without her permission. See Pl.'s Rebuttal 4,
ECF No. 112. The mere fact that the works produced were
transformative, however, also defeats Plaintiff's claim.
See Authors Guild v. Google, Inc., 804 F.3d 202, 214
(2d Cir. 2015) (noting that “transformative uses tend
to favor a fair use finding because [they] communicate
something new and different from the original or expand its
utility, thus serving copyright's overall objective of
contributing to public knowledge”); see also
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579
(1994) (explaining that “the goal of copyright, to
promote science and the arts, is generally furthered by the
creation of transformative works.”).
Plaintiff's various other allegations lack specificity
with regard to Starr. See SAC 16, 41 (alleging that
“Defendants have plagiarized . . . ” and “
created derivative works . . . ” without clarifying
which Defendants Plaintiff is referring to). As Starr points
out, a “plaintiff fails to state [a] plausible claim
when [she] ‘lump[s] all the defendants together in each
claim and provid[es] no factual basis to distinguish their
conduct.'” Def.'s Mot. 10 (citing Middleton
v. Parrish Snead Franklin Simpson, PLC, 2017 WL 774912,
at *2 (D. Nev. Feb. 27, 2017)). As another court has noted,
the minimum standard is:
. . . that a complaint give each defendant ‘fair notice
of what the plaintiff's claim is and the ground upon
which it rests.' By lumping all the defendants together
in each claim and providing no factual basis to distinguish
their conduct, [a plaintiff's] complaint fail[s] to
satisfy this minimum standard . . . ...