Unreported / Non-Citable
Background
LIV Movies Ltd., a motion picture production company, owns the copyright to the film Agents, which became effective under Registration No. PA 2-493-059 on October 4, 2024. The company filed suit against Amazon.com, Inc., Amazon.com Services LLC, and Doe defendants, alleging that defendants sold and distributed infringing DVD copies of Agents to customers in the United States and India through amazon.com without authorization. According to the First Amended Complaint, the infringing listing remained active from at least October 12, 2025, until June 16, 2026, and the DVDs were shipped from defendants' warehouse. Amazon represented itself as the seller both on the website platform and in the physical packing slip included with purchased DVDs.
The plaintiff transmitted notice of the alleged infringement to defendants via email on October 12, 2025, and sent another letter in March 2026, but received no response to either communication. The FAC asserted three claims: direct copyright infringement, contributory copyright infringement, and vicarious copyright infringement. Amazon initially moved to dismiss the original complaint, and after the plaintiff filed the FAC, Amazon filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) targeting only the second and third causes of action for contributory and vicarious infringement. Amazon did not seek dismissal of the direct copyright infringement claim.
The Court’s Holding
The court granted Amazon's motion to dismiss the contributory and vicarious copyright infringement claims. The court explained that secondary liability for copyright infringement requires a threshold showing of direct infringement by third parties, citing Perfect 10, Inc. v. Amazon.com, Inc. and A&M Records v. Napster, Inc. The FAC stated that the contributory and vicarious liability claims were pleaded in the alternative to the direct infringement claim, anticipating that defendants might contend a third party rather than defendants themselves reproduced, supplied, or sold the accused DVDs. The court found that merely anticipating defendants' potential argument does not constitute a factual allegation establishing direct copyright infringement by a third party.
The court concluded that the FAC failed to plead sufficient facts supporting secondary liability infringement by a third party, as required by Ninth Circuit law. The court noted that the deficiencies in the second and third causes of action could be cured by amendment and granted the plaintiff leave to file a second amended complaint within thirty days. If the plaintiff does not timely amend, defendants' response to the FAC is due within fourteen days after the amendment deadline. The court also denied as moot the uncorrected version of defendants' motion.
Key Takeaways
- Secondary copyright infringement claims, including contributory and vicarious infringement, require allegations of direct infringement by a third party as a threshold matter.
- Pleading secondary liability claims in the alternative to a direct infringement claim, without alleging facts showing third-party direct infringement, is insufficient to survive a Rule 12(b)(6) motion to dismiss.
- A plaintiff cannot satisfy the third-party direct infringement requirement by merely anticipating a defendant's argument that someone else committed the infringing acts.
- When dismissing claims for failure to plead required elements, courts may grant leave to amend if the deficiencies could be cured by additional factual allegations.
- Amazon's direct copyright infringement claim based on its own alleged sales and distribution of infringing DVDs remained pending after this order.
Why It Matters
This order reinforces the pleading requirement that secondary copyright infringement claims must be supported by factual allegations of direct infringement by an identifiable third party, not merely pleaded in the alternative to direct infringement by the defendant. The decision clarifies that anticipating a potential defense argument does not substitute for factual allegations establishing the elements of secondary liability. The ruling allows the plaintiff an opportunity to cure the deficiencies through amendment while permitting the direct infringement claim against Amazon to proceed.