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Jason M. Venditti (#022073) 

PETRIE & VENDITTI, PLC

20860 N. Tatum Blvd. Suite 300 

Phoenix, Arizona 85050 

Ph: (480) 771-3986 

Fax: (480) 771-7101 

Email: jvenditti@pvlawgroup.com 

Attorneys for Defendants Ugly Pools Arizona, Inc. and Brian Morris 

THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

SELLPOOLSUPPLIESONLINE.COM, LLC, 

an Arizona limited liability company, 

Plaintiff, 

vs. 

UGLY POOLS ARIZONA, INC. an Arizona 

corporation; and BRIAN MORRIS, an 

individual, 

Defendants. 

 No. CV-15-01856-PHX-BSB 

DEFENDANTS' 2ND MOTION FOR 

SUMMARY JUDGMENT ON 

PLAINTIFF'S COPYRIGHT CLAIM 

 

Pursuant to the Court's September 7, 2017 Order (Doc. 73), Defendants hereby submit 

their second Motion for Summary Judgment on the copyright claim asserted by Plaintiff in its 

Amended Complaint. (Doc. 39 at ¶¶ 26-31). 

Plaintiff's copyright claim should be dismissed because the registration precondition 

has not been met. Even if it somehow has been met, the resulting registration is limited to 

copyright material that Defendants have not infringed. 

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I. BACKGROUND 

Plaintiff’s copyright registration application was based on an online work, the SPSO 

website www.poolandspapartsnow.com, and the Deposit was a “copy” of that website. DSSOF 

¶ 30. In its September 2015 copyright application, Plaintiff described its claim as “text, 

photograph(s), [and] computer program.” DSSOF ¶ 31. The copyright application identified 

the date of first publication as August 26, 2015. DSSOF ¶ 32. 

On October 6, 2016, the copyright office asked Plaintiff “[s]ince this application is to 

register the website as it appeared (published) on 8/26/2015, was any of the computer code or 

were any of the photographs from an earlier version of the website?” DSSOF ¶ 33. The 

copyright office explained that any photographs or code that appeared in earlier website 

versions “must be excluded from this claim since the extent of claim for a revised, or 

derivative, work is based only on the new and revised material contained in the later version of 

the work.” DSSOF ¶ 33. Plaintiff’s counsel responded that some of the Deposit’s content 

“may have been from an earlier version of the website BUT we need special dispensation 

because this is the first time registration of the website and no copy (i.e., mirror or backup) of 

the prior website exists.” DSSOF ¶ 34. 

On October 14, 2016, the copyright office denied Plaintiff’s request for an exception. 

DSSOF ¶ 35. The copyright office stated that “[w]e can only register the website as it 

appeared on the date on which it was printed, not for any past or future versions.” DSSOF ¶ 

35. The copyright office also stated “if any of the content of the website ever appeared online 

or in any other form previous to the version submitted, please authorize me to exclude all of 

the preexisting material and to limit the claim to the new and revised material in this version of 

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the website.” DSSOF ¶ 35. In response, Plaintiff’s counsel inquired “[o]n what grounds is 

special dispensation denied? Websites aren’t copyrighted usually until they are mature. 

Therefore, this policy excludes almost every conceivable website that is nontrivial from being 

copyrighted.” DSSOF ¶ 36. 

On November 9, 2016, while Plaintiff’s copyright application was pending, Defendants 

filed a motion for summary judgment arguing that, based on the information in the copyright 

application, Plaintiff’s copyright for the Work completed and published in 2015 could not be 

enforced against Defendants who allegedly downloaded a version of the Work on September 

16, 2014. DSSOF ¶ 37. On November 16, 2016, Plaintiff submitted to the copyright office an 

affidavit from Aaron Hagen stating that “SPSO first published the Platform on or about July 3, 

2014. It was completed on or about June 25, 2014.” DSSOF ¶ 38. The Hagen affidavit further 

stated that “[t]he sample of the Platform provided to the United States Copyright Office with 

SPSO’s Copyright application in 2015 is the same as the website first appeared when 

published on July 3, 2014.” DSSOF ¶ 39. In an accompanying email, Plaintiff’s counsel 

confirmed that “[t]he Deposit that was submitted correctly represents the copy that was first 

published on July 3, 2014. Counsel did not have sufficient facts at the time of application.” 

DSSOF ¶ 40. 

On November 17, 2016, a supervisor at the copyright office contacted Plaintiff’s 

counsel, stating “[t]he signed affidavit that you provided states that the website was completed 

on June 25, 2014 and published on July 3, 2014. The original application lists the Year of 

Completion as 2015 and the date of first publication as August 36 [sic], 2015. Please confirm 

that we should update the information on your original application with that which is provided 

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in the [affidavit]. Please do note that the copyright notice on the bottom of each webpage 

submitted as deposit material bears the year 2015.” DSSOF ¶ 41. Plaintiff’s counsel 

responded, “[y]es the information should be updated as per the affidavit.” DSSOF ¶ 41. On 

November 17, 2016, Plaintiff also informed the copyright office that its copyright claim was 

for “the photographs and computer code related to the photographs that enabled the latter to 

present a 360 degree view of the product to a prospective customer. The Hagens also provided 

text descriptions of the products. That is the extent of the claim.” DSSOF ¶ 42. Plaintiff 

explained that “[m]uch of the website code is licensed from a third party (i.e. BigCommerce) 

and SPSO obviously makes no claims with respect to that.” DSSOF ¶ 42. 

A few days later, Plaintiff advised the copyright office that it was “no longer interested 

in registering the code . . . .” DSSOF ¶ 43. Plaintiff specified that it was “interested in 

registering the website as is with the current deposit and the modifications to the application 

already agreed to.” DSSOF ¶ 43. 

On November 29, 2016, the copyright office issued a certificate of registration. Doc. 

50, Ex. 1. The certificate of registration identifies the work as “SPSO website 

www.poolandspapartsnow.com,” the year of completion as 2014, and the date of first 

publication as July 3, 2014. DSSOF ¶ 44. The copyright claim is limited to “text [and] 

photographs” in the Deposit, which is the SPSO website www.poolandspaparts.now. DSSOF 

¶ 44. 

II. PLAINTIFF HAS NOT MET THE REGISTRATION PRECONDITION 

TO ITS COPYRIGHT CLAIM. 

To prevail on an infringement action, a copyright holder must prove: (1) ownership of a 

valid copyright; and (2) copying of constituent elements of the work that are original. Roberts 

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v. Gordy, 181 F. Supp.3d 997, 1007 (S.D. Fla. 2016) (quoting Feist Publ'ns, Inc. v. Rural Tel. 

Serv. Co., 499 U.S. 340, 361 (1991)). To establish the first element, a plaintiff must 

demonstrate that they have satisfied the requirements for registration set forth in the federal 

regulations promulgated by the Register of Copyrights. Id. (quoting Olander Enters., Inc. v. 

Spencer Gifts, LLC, 812 F. Supp.2d 1070, 1075 (C.D. Cal. 2011)). Copyright registration is a 

precondition to filing a copyright infringement action. Id. (quoting A. Printex Indus., Inc. v. 

Aeropostale, Inc., 676 F.3d 841, 852-53 (9th Cir. 2012)). 

The registration precondition is not met if 

 inaccurate information was included on the application for copyright 

registration, with the knowledge it was inaccurate, and 

 the inaccuracy of the information, if known, would have caused the Register of 

Copyrights to refuse registration. 

17 USC § 411(b)(1)(A) and (B). 

Plaintiff has not met the registration precondition because the Court and Copyright 

Office have collectively ruled against Plaintiff for the above elements. The Court has found 

that Plaintiff included inaccurate information in its copyright application, namely, Plaintiff's 

false statement that no additional copyrightable content was added to the submitted website 

after the claimed July 3, 2014 first publication date. (Doc. 64 at 22-23); DSSOF ¶ 47. And, 

the Court has found, and Plaintiff has never denied, that Plaintiff knew the submitted website 

included copyrightable content added after July 3, 2014. DSSOF ¶ 27. Finally, the Copyright 

Office confirmed that it would have refused registration of Plaintiff's copyright with a July 3, 

2014 publication date if it had known that the submitted website included copyrightable 

content added after July 3, 2014. DSSOF ¶ 19. Plaintiff's copyright claim should be 

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dismissed. Roberts, 181 F. Supp.3d at 1014. 

A. Plaintiff's Copyright Application Included Inaccurate Information. 

Plaintiff's copyright application includes inaccurate information because the July 3, 

2014 publication date for the Deposit is incorrect. Deposit material for a website must contain 

"the copyrightable material that is claimed in the application," and "the deposit should contain 

a copy of the content as it existed on the date of publication that is specified in the 

application." Register of Copyright response, p.6 (quoting Compendium (Third) 1010.1 and 

1008.6(A)). (Doc. 72-1 at 6). For registration of websites that have been revised subsequent 

to the date of first publication, the application should include the "month, day, and year that 

the revised content was first posted on that site." Register of Copyright response, p.6 (quoting 

Compendium (Third) 1009.4(A)(2)). (Doc. 72-1 at 6). Registration of a revised version 

covers only the new or revised material added. (Doc. 53, Ex G. p.2). 

Plaintiff's application violated these regulations because the Deposit submitted to the 

Copyright Office included copyrightable content added after the claimed July 3, 2014 

publication date. DSSOF ¶ 1. The additional content includes photographs of Nemo products 

added on October 14, 2014, including entire webpages displaying the Nemo products. DSSOF 

¶¶ 1-5. The additional content also includes a new Contact Us page, updated some time after 

January 14, 2015. DSSOF ¶ 6. Even Plaintiff admits that the website submitted to the 

Copyright Office included additional copyrightable content added beyond July 3, 2014. 

DSSOF ¶ 18. 

B. The Information Was Included With The Knowledge That It Was 

Inaccurate. 

As the Court notes, Plaintiff has not argued that it unknowingly provided false 

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information to the copyright office.1 DSSOF ¶ 27. Plaintiff never claimed, and does not 

argue even now in its pending Motion for Summary Judgment, that it was unaware of the 

additional copyrightable material added after July 3, 2014 in the version of the website that 

was submitted to the Copyright Office. DSSOF ¶ 28; Doc. 78. 

The false information that Plaintiff provided to the Copyright Office goes well beyond 

the type of "clerical error" or "inadvertent mistakes" that might be forgiven under Section 

411(b). Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980, 991 (9th Cir. 2017).2 Plaintiff 

is the one who controlled the website, and Plaintiff has never argued that it was a third party 

who added copyrightable content to the website after July 3, 2014. 

Moreover, Plaintiff has testified that it knew specific copyrightable content was added 

past July 3, 2014. Specifically, Plaintiff testified that it was constantly updating past July 3, 

2014 the computer code that it claimed as copyrightable content in the application. Plaintiff's 

original copyright application included "computer program." SOF ¶ 31. Plaintiff informed the 

 

1 Any such argument is inconsistent with Plaintiff’s request for “special dispensation” because 

its deposit “may” contain additional content added after the claimed publication date. DSSOF 

¶ 34. Plaintiff knew, or at the very least suspected, the deposit contained additional content 

(hence the reason for its request for special dispensation), and therefore its unequivocal

statement to the USCO that the deposit was the “same” was knowingly false. 

2 The "knowledge" requirement in Section 411(b)(1)(A) does not require that Plaintiff knew 

its application violated copyright regulations. To show Plaintiff 

"knowingly" provided false information, Defendant does not need to prove that Plaintiff knew 

the act was unlawful. US v. Davenport, 515 Fed. Appx. 681 (9th Cir. 2013) (unpublished 

opinion) (quoting US v. Greer, 640 F.3d 1011, 1017 (9th Cir. 2011)). A mistake of law is not 

a defense against "knowingly" violating a federal civil statute, unless Congress explicitly 

includes the mistake-of-law defense. Jerman v. Carlisle, McNellie, Rini, Kramer, 130 S. Ct. 

1605, 1608-1615 (2010) (giving example of mistake-of-law affirmative defense explicitly 

included in DMCA statute 17 U.S.C. § 1203(c)(5)(A) that reduces damages where "the 

violator was not aware and had no reason to believe that its acts constituted a violation"). 

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Copyright Office that its copyright claim included "the photographs and computer code related 

to the photographs that enabled the latter to present a 360 degree view of the product to a 

prospective customer." SOF ¶ 42. 

Plaintiff testified that the computer code was newer HTML6 code instead of HTML5 

code. In a lead-up question to Plaintiff as to why the copyright application had a completion 

date of 2015, Plaintiff's counsel asked about "flash and something 6 as opposed to version 5, 

was any of that kind of updating or content updating done prior to the application being filed 

in 2015? Plaintiff responded, "Absolutely. That -- that -- code is embedded on the website 

that that was copyrighted." Plaintiff explained in reference to its 360 degree view code that 

"all of the code being sent to outside servers, it's code that I have to constantly keep 

maintaining and keeping up[.]" DSSOF ¶ 46. 

Plaintiff’s counsel initially admitted to the Copyright Office that some of the Deposit’s 

content “may have been from an earlier version of the website BUT we need special 

dispensation because this is the first time registration of the website and no copy (i.e., mirror 

or backup) of the prior website exists.” DSSOF ¶ 34. Giving Plaintiff the benefit of the doubt, 

Plaintiff at the very least had awareness that there was a question as to the various dates that 

content was last added to its website. And, again giving Plaintiff the benefit of the doubt, 

Plaintiff did not investigate further the dates that content were added to the website, despite 

being aware of the potential problem. Instead, Plaintiff later changed its mind, and submitted 

an affidavit to the Copyright Office definitively declaring that “[t]he sample of the Platform 

provided to the United States Copyright Office with SPSO’s Copyright application in 2015 is 

the same as the website first appeared when published on July 3, 2014.” DSSOF ¶ 39. 

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Plaintiff had knowledge the affidavit was false because Plaintiff either (1) knew the facts 

asserted were outright false, or (2) had uncertainty as to the facts, but submitted an affidavit 

stating the asserted facts with absolute certainty. Willful blindness that information is 

incorrect is equal to "knowledge" that it is incorrect. See Global-Tech Appliances, Inc. v. SEB 

SA, 131 S. Ct. 2060, 2069 (2011). Even defense counsel, who received the false affidavit on 

December 4, 2016, was able to review Plaintiff's Deposit and by December 9, 2016 send a 

detailed letter to Plaintiff's counsel explaining multiple reasons why the affidavit was false. 

(Doc. 53, Ex. U). DSSOF ¶¶ 9, 45. 

C. The Inaccuracy, If Known, Would Have Caused The Register Of 

Copyrights To Refuse Registration. 

The Copyright Office stated that had it been aware, prior to registration, that Plaintiff 

knowingly provided deposit material that did not depict the website's content as published on 

July 3, 2014, but instead provided a later version of the website that included new 

copyrightable material, the Copyright Office would have refused registration. DSSOF ¶ 19. 

The Copyright Office opinion included a caveat – it assumed, based on the language of 

the Request, that the additional content added to the website after July 3, 2014 was 

copyrightable. DSSOF ¶ 19. The Copyright Office's assumption is correct - the additional 

content includes pictures, which even Plaintiff has acknowledged are inherently copyrightable. 

DSSOF ¶ 20. Even Plaintiff admits that the website submitted to the Copyright Office 

includes additional copyrightable content added beyond July 3, 2014. DSSOF ¶ 18. 

D. Conclusion 

Plaintiff's copyright claim should be dismissed. The failure to properly register a work 

will preclude an infringement action predicated on that work. Roberts, 181 F. Supp.3d at 1014 

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(dismissing copyright claim under 17 USC 411(b) after consulting with the Copyright Office). 

The Copyright Office and Court have concluded that Plaintiff's work was not properly 

registered and would have been refused had the Copyright Office known the truth about the 

underlying deposit. Accordingly, no genuine issue exists. The precondition for filing 

Plaintiff's claim for copyright infringement was not met. Dismissal is required. 

III. THE FALSE STATEMENTS IN PLAINTIFF'S COPYRIGHT 

REGISTRATION REQUIRE DISMISSAL. 

The Court's September 7, 2017 Order states that any motion for summary judgment 

must address "if Plaintiff has satisfied the precondition to bringing suit [under 17 U.S.C. § 

411(a)], how that finding affects Plaintiff's copyright claim." (Doc. 73 at 2). 

There are four ways to address a fiction where Plaintiff is somehow permitted to 

enforce a copyright registration with an official July 3, 2014 first publication date that 

contradicts the actual first publication date of the underlying deposit. One way is to take the 

underlying deposit at face value; another is to take the original copyright application at face 

value; and another is to take the registration at face value. The fourth way is to not take the 

registration at face value pursuant to the Court's discretion under 17 U.S.C. § 410(c).Any of 

these approaches results in dismissal of Plaintiff's copyright claim. 

A. Enforcing the Underlying Deposit Results in Dismissal. 

Enforcing the underlying deposit results in dismissal. As the Copyright Office has 

confirmed, only the most recently added copyright material in the deposit is claimable. 

Defendants never copied the most recently added material in the deposit. DSSOF ¶¶ 3, 21, 24. 

The Copyright Office has stated that once a website contains a sufficient amount of 

new, copyrightable authorship different from a previous version of that website, that new 

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copyrightable authorship constitutes a derivative work and should be registered as a work 

separate from any previous version. Register of Copyright response, p.6 (quoting 

Compendium (Third) 1008.5). (Doc. 72-1 at 6). If the deposit contains materials that existed 

in an earlier version of the website, they must be excluded from the claim since the extent of 

the claim for a revised, or derivative, work is based only on the new and revised material 

contained in the later version of the work. Register of Copyright response, p.3 (Doc. 72-1 at 

3). The Copyright Office has no exceptions to this rule. Id. pp. 3-4, n.12 (Doc. 72-1 at 3-4). 

Plaintiff's most recent copyrightable material in the deposit includes Nemo product 

pictures that were added on or about October, 14, 2014, as well the Contact Us webpage, 

modified some time after January 14, 2015. DSSOF ¶¶ 1-6. Thus, Plaintiff can only enforce 

its copyright against infringement of the Nemo products. Defendants never copied, nor has 

Plaintiff ever alleged, that Defendants copied Plaintiff's Nemo products or the Contact Us web 

page, DSSOF ¶ 21, because Defendants' alleged copying of Plaintiff's content was on 

September 16, 2014. DSSOF ¶ 24. Thus, Defendants cannot be liable for infringing the 

claimable material in the deposit. 

B. Enforcing the Original Application Results in Dismissal. 

The Court should enforce the copyright application as filed because it radically differs 

from the eventual registration that issued after discovery was complete and dispositive motions 

were filed. Plaintiff was corresponding with the Copyright Office on September 22, 2016, 

DSSOF ¶ 7, and amending its Application on September 23, 2016, DSSOF ¶ 8, well before 

any dispositive motions were filed. But, Plaintiff did not disclose its Copyright Office 

correspondence and amendments to Defendants until December 4, 2016, after dispositive 

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motions were filed. DSSOF ¶ 9. Plaintiff's bad faith in withholding the correspondence is 

further illustrated by the fact that Plaintiff resisted disclosing the Copyright Office 

correspondence and only did so after being threatened with a motion to compel. DSSOF ¶ 10. 

The copyright claim in Plaintiff's Amended Complaint states Plaintiff "delivered a 

completed application, deposit and fee for copyright registration of the Platform on September 

13, 2015." DSSOF ¶ 22. Defendants relied upon the copyright application in conducting their 

discovery and filing their dispositive motion on the copyright issue. Defendants' discovery 

and original Motion for Summary Judgment on the copyright claim was based upon the 

application's information for (1) the named Authors; (2) the means of ownership; (3) the Year 

of Completion; (4) the Date of 1st Publication; (5) the Material Excluded from Claim; and (6) 

the New Material Included in Claim. DSSOF ¶ 23. 

The registration certificate did not issue until after the dispositive motions were filed. 

The majority of the information in the Copyright Registration is different from the application, 

including the Author(s); the means of Ownership; the Year of Completion; the Date of 1st

Publication; the Material Excluded from Claim; and the New Material Included in Claim. 

DSSOF ¶ 11. In fact, Plaintiff requested that the Copyright Office change the Date of 1st

Publication and Year of Completion within a week after Defendants' Motion's arguments 

about the publication and completion dates listed in the application. (The sequence of events 

is outlined in the Court's June 9, 2017 Order (Doc. 64 at 18-19)). Plaintiff should not be 

permitted to rely upon a registration issued at the last minute that claims material different 

from the material asserted just before the lawsuit had been filed. 

The Ninth Circuit allows a just-filed application to satisfy the registration requirement 

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of Section 411(a) because registration is viewed as a mere formality and "[t]he two processes – 

registration approval by the Copyright Office and an underlying infringement case in the 

courts – can occur simultaneously with little or no prejudice to any involved parties." Cosmetic 

Ideas, Inc. v. IAC/Interactive Corp., 606 F.3d 612, 621 (9th Cir. 2010). That is not what 

happened here. Defendants were severely prejudiced by the simultaneous litigation and 

registration processes. The content of Plaintiff's application – upon which Defendants based 

their discovery and dispositive motion – was completely different from the content claimed in 

Plaintiff's registration that was asserted after the parties had conducted discovery and filed 

dispositive motions. It would be equitable for the Court to enforce Plaintiff's copyright as 

filed rather than as registered. Filing a copyright application is a precondition to asserting a 

copyright claim. It is supposed to put Defendants on notice as to the nature of the claimed 

subject matter of the lawsuit. Plaintiff's application did not create notice, and in fact 

misrepresented to Defendants what Plaintiff ended up claiming as its copyright. 

If the Court chooses to enforce the original copyright application, the claim should be 

dismissed. Plaintiff's application to register a work that was first published in 2015 cannot be 

the basis for an alleged copyright infringement that occurred in 2014. IMS Inquiry Manag. 

Sys., Ltd. v. Berkshire Inform. Sys., Inc., 307 F. Supp.2d 521, 527 (S.D.N.Y. 2005). Plaintiff's 

Platform was first made public in 2011 and was constantly revised up into 2015. DSSOF ¶ 12. 

Defendant allegedly copied some 2014 version of the Platform, but Plaintiff only applied to 

register a 2015 version of the Platform that Defendants have not copied. 

Plaintiff's copyright application for its work states "Year of Completion: 2015." The 

copyright application also states "Date of 1st Publication: August 26, 2015." DSSOF ¶ 13. 

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Yet, according to the Amended Complaint, Defendants are alleged to have copied Plaintiff's 

work a year earlier on September 16, 2014. DSSOF ¶ 24. 

In order for a plaintiff to assert a claim against an infringer for an earlier unregistered 

version of a registered work the original work needs to be identified in the derivative 

application with specificity. Notably, Courts have found registration of a derivative work 

insufficient to encompass the original, preexisting work where the registration certificate failed 

to properly identify the original work from which the subsequent work was derived (and upon 

which the infringement claim was based). IMS, 307 F. Supp.2d at 529; Oskar Sys, LLC v. 

Club Speed, Inc., 745 F. Supp.2d 1155, 1163 (C.D. Cal. 2010). Here, Plaintiff's claim fails 

because Plaintiff's copyright application does not identify with specificity any original work, 

from 2014 or any other year, upon which the 2015 work is based. In fact, Plaintiff's copyright 

application does not allude at all to any original work of which it is a derivative. DSSOF ¶ 25. 

The Answer to the Amended Complaint warned Plaintiff that its copyright application 

identifies a work that was created after Defendants' alleged copying, first published after

Defendants' alleged infringement, and refers to no work from which it was derived. DSSOF ¶ 

29. During Plaintiff's deposition, Plaintiff was questioned twice why Plaintiff's copyright 

application listed a publication and completion date that was after the date of Defendants' 

copying. DSSOF ¶ 14. Despite Defendants' warning, Plaintiff never attempted to try to fix 

this defect in its copyright application or Amended Complaint until after Defendants had filed 

their original Motion for Summary Judgment. 

C. Enforcing the Registration at Face Value Results in Dismissal. 

The registration states that the Date of First Publication for the claimed content is July 

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3, 2014. DSSOF ¶ 12. As the Copyright Office has stated, for website registrations "the 

application should only provide a date of first publication for the specific version that will be 

submitted for registration." Register of Copyright response, p.6 (quoting Compendium (Third) 

1009.4(A)) (Doc. 72-1 at 3). For registration of websites that have been revised subsequent to 

the date of first publication, the application should include "the month, day, and year that the 

revised content was first posted on that site." Id. (quoting Compendium (Third) 1009.4(A)(2)) 

(doc. 72-1 at 3). 

The question is, what material in the deposit was first published on July 3, 2014? The 

answer is: Nothing. Plaintiff's copyright registration claims nothing. Plaintiff's website has 

been active since 2011 and was updated over time. DSSOF ¶ 12. Consequently, even if the 

Deposit actually had been last updated on July 3, 2014, it would still be a work derivative of 

earlier versions of Plaintiff's website. Thus, the resulting registration could only claim 

whatever updates were added on July 3, 2014. 

But in fact, there were no copyrightable updates on July 3, 2014, because Plaintiff 

testified it completed the Platform in June 2014. DSSOF ¶ 15. Plaintiff also submitted an 

affidavit stating the website was completed on or about June 25, 2014. DSSOF ¶ 38. 

Therefore, there is no content to claim for July 3, 2014. 

 Plaintiff argues it can claim any website content added before July 3, 2014 because July 

3, 2014 was the first day Plaintiff offered the website for sale, and therefore the website was 

first "published" on that date. Plaintiff is incorrect about its date of first sale of the website. 

Even by Plaintiff's own definition of "publication," the website actually had a first publication 

date just before July 3, 2014, which means the July 3, 2014 version was merely a derivative. 

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Plaintiff argues "publication" of an online work occurs when the "owner clearly authorized the 

reproduction or distribution of that work," or "first offered for sale to the public" DSSOF ¶ 26. 

Publication includes the distribution of a copy of a work by sale, rental or lease, or an offer to 

distribute copies to a group of persons for purposes of further public display. Compendium 

1008.3(B)(i) and (ii). Plaintiff sold a license for a copy of the Platform on June 12, 2014. 

DSSOF ¶ 16. Thus, even under a stricter definition, Plaintiff first "published" its 

Platform at least as early as June 12, 2014. Its registration with a date of first publication of 

July 3, 2014 therefore only covers any new content published since that date, of which there 

was none. DSSOF ¶¶ 15, 38. 

Plaintiff also made an authorized copy of the Platform on June 24, 2014, at the mirror 

website www.poolandspapartstoday.com. DSSOF ¶ 17. Thus, by Plaintiff's own definition, 

Plaintiff "published" its Platform on June 24, 2014, which, again, is before the July 3, 2014 

publication date listed in the registration, and again, makes the July 3, 2014 version not the 

first-published version of the website, even by Plaintiff's definition. 

D. The Court Has Discretion to Disregard the Copyright Registration. 

Even if Plaintiff has met the Section 411(a) preconditions to filing suit, and even if the 

Court cannot cancel or amend the registration, the Court should exercise its discretion to treat 

the registration as fraudulent. "[T]he Register's decision of whether or not to grant a 

registration certificate is large perfunctory, and is ultimately reviewable by the courts." 

Cosmetic Ideas, 606 F.3d at 621. Approval by the Register gives an application only prima 

facie evidence of copyright, leaving the courts to make the ultimate determination. Id. at 621 

n.13 (citing 17 U.S.C. § 410(c)). In the present case, the prima facie presumption that the 

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registration is accurate has been proven false and should be disregarded. 

Specifically, the Court is not obligated to believe that the Date of First Publication for 

the underlying deposit is July 3, 2014. The registration only gives prima facie evidence of the 

date of first publication, and is not binding on the Court. In any judicial proceedings the 

certificate of a registration shall constitute prima facie evidence "of the facts stated in the 

certificate." 17 U.S.C. § 410(c). However, the evidentiary weight to be accorded of the Date 

of First Publication in the certificate "shall be within the discretion of the court." Id. 

In any judicial proceedings the certificate of a registration made before or within 

five years after first publication of the work shall constitute prima facie evidence

of the validity of the copyright and of the facts stated in the certificate. The 

evidentiary weight to be accorded the certificate of a registration made thereafter 

shall be within the discretion of the court. 

17 U.S.C. § 410(c) (emphasis added). In the present case, the evidence has proven, by 

documents and Plaintiff's own admissions, that the claimed July 3, 2014 date of first 

publication is false because copyrightable material in the Deposit, namely the Nemo products, 

were added in October 2014. DSSOF ¶ 3. The Copyright Office has weighed in as well, 

stating that had it known what was really going on, it would have gone even further and 

demanded that the date of first publication revert back to August 26, 2015. Register of 

Copyright response, p.8 (Doc. 72-1 at 8). 

 The most recent copyrightable content in the deposit is actually from October 2014 or 

later. That is the real date of first publication for the claimed content. Defendants never 

copied this content, and therefore Plaintiff's claim should be dismissed. 

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RESPECTFULLY SUBMITTED this 28th day of September, 2017. 

PETRIE & VENDITTI, PLC 

By: 

/s/ Jason M. Venditti 

 Jason M. Venditti 

 20860 N. Tatum Blvd., Suite 300 

Phoenix, Arizona 85050 

Attorneys for Defendants 

CERTIFICATE OF SERVICE 

 I hereby certify that on September 28, 2017, I electronically transmitted the attached 

document to the Clerk’s Office using the ECF System for filing and transmittal of Notice of 

Electronic Filing to the following ECF registrants: 

 A courtesy copy of the Notice of Electronic Filing was also mailed on this same date to 

the following address: 

Carlos Leyva 

Digital Business Law Group PA 

1001 Starkey Rd., Ste. 18 

Largo FL 51017 

cleyva@digitialbusinesslawgroup.com 

Attorney for Plaintiff 

 

Linda S. McAleer 

Digital Business Law Group 

530 B St., Ste. 1550 

San Diego CA 92101 

lsmnotices@gmail.com 

Attorney for Plaintiff 

 /s/ Jason M. Venditti 

 By: __________________________________ 

 Jason M. Venditti, Esq.

Case 2:15-cv-01856-BSB Document 79 Filed 09/28/17 Page 18 of 18