3:15-cv-00866-ST 

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Defendant’s Rule 12(b)(6) MOTION TO DISMISS

David H. Madden 

Mersenne Law 

9600 S.W. Oak Street 

Suite 500 

Tigard, Oregon 97223 

(503)679-1671 

ecf@mersenne.com 

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

COBBLER NEVADA, LLC, 

Plaintiff 

v. 

Thomas GONZALES, 

Defendant 

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Civil Action No.: ........... 3:15-cv-00866-ST 

DEFENDANT GONZALES’S 

MOTION TO DISMISS 

PLAINTIFF’S SECOND CLAIM FOR 

RELIEF PURSUANT TO RULE 12(b)(6) 

AND MEMORANDUM IN SUPPORT 

THEREOF 

Request for Oral Argument 

LOCAL RULE 7-1 CERTIFICATION

In compliance with L.R. 7-1, the undersigned certifies that counsel for 

Defendant GONZALES has made a good-faith effort to resolve the matters 

contained within this motion through personal or telephone conferences, 

but was unable to do so. 

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Defendant’s Rule 12(b)(6) MOTION TO DISMISS

MOTION TO DISMISS

Defendant Thomas GONZALES moves the Court for an order dismissing Plaintiff’s 

second claim for relief (indirect copyright infringement) on the ground that there is no 

authority under existing law or under a good-faith proposal for an extension of law that 

would support the imposition of liability for the conduct alleged. 

As set forth in the following Memorandum, Plaintiff has failed to allege acts upon 

which the Court could find Defendant liable for copyright infringement under any 

secondary-liability theory. Therefore, the second cause of action should be dismissed. 

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

I. INTRODUCTION

“The Copyright Act does not expressly render anyone liable for infringement committed 

by another.” Sony v. Universal City, 464 U.S. 417, 434 (1983). However, courts have 

developed several common-law doctrines of secondary liability, which are called 

contributory infringement, vicarious infringement, and inducement of infringement.1

 

This Memorandum will set forth the common-law rules for the three theories of 

secondary liability and show that Plaintiff’s allegations fail to satisfy any of them. 

II. PLAINTIFF’S ALLEGATIONS FAIL TO MEET THE TWOMBLY/IQBAL STANDARD

As an initial matter, Plaintiff’s First Amended Complaint filed 4 November 2015 (doc. 

24, “FAC”) is a bare-bones affair containing mostly irrelevant material cut-and-pasted 

 

1

 There is no “indirect infringement” per se; Plaintiff’s use of this term appears calculated to obfuscate the 

distinct elements of the three cognizable secondary-liability theories and conceal the fact that its 

allegations satisfy none of them. 

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Defendant’s Rule 12(b)(6) MOTION TO DISMISS

from Plaintiff’s many other suits in this jurisdiction, with a few equivocal “facts” that fail 

to make a plausible case for the relief it seeks. And this is apparently the best Plaintiff 

can do, after two rounds of early discovery authorized by this Court against 

unrepresented individuals who could not effectively contest Plaintiff’s representations 

to the Court in support of the early discovery, and who could not begin to inquire into 

other aspects of Plaintiff’s allegations. 

Plaintiff’s factual allegations about Defendant are confined to just four paragraphs 

(FAC ¶¶ 12–14), and if they are taken to be true (as the Court must while reviewing a 

Motion to Dismiss under R. 12(b)(6)), they establish: 

 Plaintiff filed originally against an unidentified person (a “Doe”) known only by 

a numeric computer address, and now believes that Defendant GONZALES is 

that person; 

 The computer address (not any particular person, and certainly not 

Defendant) has been observed distributing Plaintiff’s motion picture “multiple 

times;” 

 The computer address (not any particular person) “has been observed as 

associated with the peer-to-peer exchange of a large number of copyrighted 

titles;” and 

 Defendant has been sent “over 400 notices of infringing activity.” 

Plaintiff’s liberal use of the passive voice (“has been observed,” “has been sent”) 

raises more questions than it answers, and the allegations fail to pin any culpable 

conduct on Defendant. For example, it is not Defendant who “was observed” infringing 

copyrights, but merely a computer address. (One might speculate that Defendant pays 

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Defendant’s Rule 12(b)(6) MOTION TO DISMISS

the bill for the Internet service associated with that address, but Plaintiff does not even 

allege that attenuated connection with this matter.) 

There is no connection alleged between Defendant and a computer having that 

address – is it Defendant’s own computer? Is it someone else’s computer that 

Defendant is somehow responsible for? Whose computer is it, and why is Defendant 

responsible for it? (If it is someone else’s computer, why wasn’t that person named 

instead of Mr. GONZALES?) 

And though Defendant allegedly “was sent” many notices, Plaintiff never alleges 

that Defendant received them. Why not make that allegation? After all, Plaintiff was 

granted a subpoena to take Defendant’s deposition – and did in fact take the 

deposition – before naming Defendant in this action. In other words, before the rights 

and protections afforded to any other defendant in a civil suit became available to Mr. 

GONZALES, Plaintiff was allowed to ask any question it wanted of him. Why not ask 

“did you receive those notices?” and then allege “Defendant actually received many 

notices”? For that matter, given Plaintiff’s apparent knowledge of the content of 

electronic correspondence purportedly sent to Defendant, why not allege that the 

correspondence put Defendant on notice of the infringement of Plaintiff’s copyright? 

Why not allege that Plaintiff itself sent some of those notices? That fact, at least, is 

entirely within Plaintiff’s knowledge and control. If it was true, it could have been 

included among the allegations of the original complaint. And if it is not true, then 

why is it relevant what other correspondence “was sent,” if Plaintiff is without even 

information and belief to say whether it was received, or that it concerned Plaintiff’s 

motion picture? 

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Defendant’s Rule 12(b)(6) MOTION TO DISMISS

Plaintiff must do much better, and should have been able to do better, after the 

Court twice aided it by authorizing the issuance of subpoenas to third parties who (at 

the time) were not accused of any wrongdoing. Allowing Plaintiff to proceed on factual 

allegations that do not merely fall short of the line between possibility and plausibility, 

but are practically non-existent, allows it to “take up the time of a number of other 

people, with the right to do so representing an in terrorem increment of the settlement 

value.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546 (2007) (quoting Dura 

Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005)). The Court should dismiss the 

challenged count. 

III. PLAINTIFF FAILS TO STATE A CLAIM FOR RELIEF AGAINST DEFENDANT 

FOR COPYRIGHT INFRINGEMENT BY A THIRD PARTY

Although Plaintiff neglects to specify the theory under which it claims damages from 

Defendant for the copyright infringement of another, consideration of the elements of 

the three cognizable theories shows that Plaintiff has failed to allege facts that would be 

sufficient to make out any of them. 

Plaintiff Fails to Allege Contributory Infringement 

 “The classic statement of the doctrine [of contributory infringement] is in Gershwin, 

443 F.2d 1159, 1162: ‘[O]ne who, with knowledge of the infringing activity, induces, 

causes or materially contributes to the infringing conduct of another, may be held liable 

as a «contributory» infringer.’” Fonovisa v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th

Cir., 1996). As might be expected, virtually every word of that definition has been 

argued over and construed in one case or another, but Plaintiff does not even allege 

facts that – if true – would give Defendant knowledge of others’ infringing activity – as 

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Defendant’s Rule 12(b)(6) MOTION TO DISMISS

noted above, the only allegation is that notices of infringing activity “were sent,” not 

that Defendant received, read or understood them. 

The “knowledge” element is not satisfied constructively: “was sent” does not 

suffice. (“[Plaintiff’s] decision to forgo the DMCA notice protocol ‘stripped it of the 

most powerful evidence of a service provider’s knowledge—actual notice of 

infringement from the copyright holder.’” UMG Recordings v. Shelter Capital Partners, 

LLC, 718 F.3d 1006, 1020 (9th Cir. 2013)). And even if “was sent” was enough, notices 

from others, about copyrighted properties of those others, cannot be relied upon by a 

plaintiff who did not bother to try to protect his own property. Id. at 1024-26. 

Plaintiff’s allegations are also deficient in that no “other infringers” are identified, 

and no acts by Defendant to “induce, cause[] or materially contribute[] to” those 

others’ infringing conduct are alleged. There is no shortage of examples of such 

material contributions: promoting (i.e., creating an audience for) directly-infringing 

artists, Gershwin Publishing Corp. v. Columbia Artists Management, 443 F.2d 1159 (2nd

Cir. 1971); promoting a swap meet and controlling customer and vendor access, 

Fonovisa Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996); providing an Internet 

site and support facilities to help direct infringers find and download copyrighted 

music, A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). Yet here, 

Plaintiff does not allege any act by Defendant, let alone one that could plausibly be 

described as Defendant’s “material contribution” to the infringing activity of another.

Plaintiff’s factual allegations, taken as true, do not give rise to liability for 

contributory infringement. The FAC does not adequately allege secondary liability for 

infringement under a “contributory infringement” theory, and the claim is properly 

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Defendant’s Rule 12(b)(6) MOTION TO DISMISS

subject to dismissal. 

Plaintiff Fails to Allege Vicarious Infringement 

The second theory of secondary copyright-infringement liability that Plaintiff fails to 

make out is vicarious infringement. Liability under this theory may be found “when 

the defendant profits directly from the infringement and has a right and ability to 

supervise the direct infringer,” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 

U.S. 913 (2005), fn. 9. (hereinafter “MGM v. Grokster”). 

Plaintiff alleges no facts to suggest that Defendant profited directly from any 

infringement committed by any third party. The closest it comes is ¶ 23: “Many parties, 

and possibly defendant have been compensated for their participation in expanding 

the availability of pirated content to others through BitTorrent networks, including 

plaintiff’s movie.” (Emphasis added.) The mere possibility that Defendant was 

compensated – when Plaintiff itself uses the word – obviously fails to satisfy the 

Twombly/Iqbal standard of pleading. Further, Plaintiff’s allegation is logically 

inconsistent with the requirements of a vicarious infringement claim: Plaintiff says 

Defendant was “possibly” compensated for his own participation in expanding the 

availability of pirated content. But if he had actually participated, then there is no need 

to pursue an indirect liability theory. For a successful vicarious infringement case, 

Plaintiff must plead and prove that Defendant profited from the infringement of 

another whom Defendant had the right and ability to control. Plaintiff has done no 

such thing, and so its allegations, taken as true, fail to establish liability for vicarious 

infringement. The First Amended Complaint’s “indirect infringement” count is subject 

to dismissal if it is interpreted to be a vicarious infringement claim. 

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Defendant’s Rule 12(b)(6) MOTION TO DISMISS

IV. PLAINTIFF FAILS TO ALLEGE INDUCEMENT OF INFRINGEMENT

The final theory of secondary copyright-infringement liability that Plaintiff fails to allege 

is inducing infringement: “one who distributes a device with the object of promoting 

its use to infringe copyright, as shown by clear expression or other affirmative steps 

taken to foster infringement, is liable for the resulting acts of infringement by third 

parties.” MGM v. Grokster, 545 U.S. at 936-37. As with the other two theories, Plaintiff 

fails to identify any third party who (allegedly) committed copyright infringement, and 

also does not identify a device that Defendant allegedly distributes, nor any clear 

expression or other affirmative step by Defendant that suggests his intent to foster such 

infringement by the third party. 

By way of contrast, defendants who have been liable for inducing infringement do 

things like distributing electronic newsletters “promoting [their] software’s ability to 

access popular copyrighted music,” MGM v. Grokster, 545 U.S. 913,938 (2005) and 

“prominently featur[ing] a list of ‘Box Office Movies’” on a website and inviting a user 

to upload a torrent file for that movie – “in other words, [the user] would be asked to 

upload a file that, once downloaded by other users, would lead directly to their 

obtaining infringing content.” Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 

1020, 1036 (9th Cir. 2013). 

The FAC does not allege that Defendant supplied software, operated a website or 

performed any other act that could possibly be construed as encouraging, fostering or 

inducing any third party to infringe any copyright at all, let alone Plaintiff’s copyright. 

The complaint fails to state a claim for secondary liability under an “inducement” 

theory, and is subject to dismissal. 

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Defendant’s Rule 12(b)(6) MOTION TO DISMISS

CONCLUSION

Plaintiff’s First Amended Complaint is utterly devoid of factual allegations bearing on 

many essential elements of an indirect copyright-infringement claim, under any of the 

theories by which such liability could be imposed. Furthermore, the few factual 

allegations that are present are inadequate to raise a possibility of success in 

establishing the elements for which they are presumably offered. Yet Plaintiff offers 

only these sparse allegations in support of the legal conclusion that Defendant 

“facilitated and promoted the use of the Internet for the infringing of plaintiff’s 

exclusive rights” (FAC at ¶ 34). The allegations cannot possibly – let alone plausibly – 

carry the weight of the conclusions. And while it is true that granting a motion to 

dismiss at this stage ordinarily deprives a plaintiff of the opportunity to conduct 

discovery to substantiate his suspicions, in this case, Plaintiff has already been granted

authority to conduct such discovery, and it still cannot state a claim against Defendant. 

For the foregoing reasons, Defendant respectfully requests that Plaintiff’s second 

cause of action be dismissed. 

28 December 2015 

Date David H. Madden, SBN OR080396 

Attorney for Defendant Thomas GONZALES 

Mersenne Law 

9600 S.W. Oak Street 

Suite 500 

Tigard, Oregon 97223 

dhm@mersenne.com 

(503)679-1671 

Case 3:15-cv-00866-SB Document 27 Filed 12/28/15 Page 9 of 10
 

3:15-cv-00866-ST Certificate of Service

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the document entitled: 

DEFENDANT GONZALES’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT 

UNDER RULE 12(b)(6) AND MEMORANDUM IN SUPPORT THEREOF

was served upon the parties listed below on the date indicated, 

 by following state law for serving a summons in an action brought in courts of 

general jurisdiction where the district court is located or where service is made: 

 by delivery of a true copy of the document to the party to be served; 

 by delivering a true copy of the document to the dwelling house or usual place 

of abode of the person to be served, to any person 14 years of age or older 

residing in the dwelling house or usual place of abode of the person to be 

served; 

 by leaving a true copy of the document during working hours at an office 

maintained by the party to be served for the conduct of business, with the person 

who is apparently in charge; 

 by mailing a true copy of the document to the party by first class mail and by any 

of the following: certified, registered, or express mail with return receipt 

requested; 

 by delivering a copy of the document to the individual personally; 

 by leaving a copy of the document at the individual’s dwelling or usual place of 

abode with someone of suitable age and discretion who resides there; 

 by delivering a copy of the document to an agent authorized by appointment or by 

law to receive service of process; 

 by electronic filing notification (PACER); or

 other: courtesy copy by electronic mail to crowell@crowell-law.com 

Carl D. Crowell, Esq. 

Crowell Law 

943 Liberty Street S.E. 

P.O. Box 923 

Salem, Oregon 97308-0923 

Attorney for Plaintiff COBBLER NEVADA, LLC 

 

Date David H. Madden 

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