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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' REPLY IN SUPPORT 

OF THEIR SECOND MOTION FOR 

SUMMARY JUDGMENT 

 

 

 Defendants hereby submit their Reply in support of their Second Motion for Summary 

Judgment (Doc. 79). 

 Plaintiff has not contested any of the material facts supporting Defendants' Second 

Motion for Summary Judgment. Plaintiff does not dispute 45 of the 47 paragraphs asserted in 

Defendants' Separate Statement of Facts. (Doc. 80). Of the two paragraphs that are disputed, 

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the first is essentially a legal disagreement over what constitutes "publication". Compare 

Defendants' Separate Statement of Facts ("DSSOF") and Plaintiff's Controverting and 

Supplemental Statement of Facts ("PCSSOF") ¶ 12. (Doc. 80 at 3, Doc. 82 at 2). The 

argument against the second disputed paragraph appears to be a non sequitur. Compare 

DSSOF, PCSSOF ¶ 23 (Doc. 80 at 5, Doc. 82 at 3). 

Plaintiff's Introduction Adds Nothing New. 

Plaintiff's introductory remarks fill almost nine pages of Plaintiff's 17-page Response. 

The introduction contradicts both the opinion of the Copyright Office and the Court's prior 

findings. Even if the Court were inclined to reverse itself and overrule the Copyright Office, 

Defendants' prior briefing already addresses why Plaintiff still does not prevail even if it is 

legally correct on Copyright Office procedure. To summarize: 

1. Even if Plaintiff is correct that "published" means the day Plaintiff's content was first 

sold or Plaintiff made a publicly available copy, Plaintiff sold a license in June 2014 and 

publicly reproduced the website in June 2014, not on July 3, 2014. DSSOF ¶¶ 16, 17. (Doc. 

80 at 4). 

2. Even if Plaintiff is correct that Plaintiff's website was first "published" on July 3, 

2014, the most recent content in the Deposit was "published" in October 2014 or later. 

DSSOF ¶¶ 1-6 (Doc. 80 at 1-2). 

3. Even if Plaintiff were somehow permitted to exclude the most recently-added 

content in the Deposit in favor of claiming older content, Plaintiff never informed the 

Copyright Office that the Deposit included content added after July 3, 2014, and never 

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attempted to distinguish between the Deposit content published on July 3, 2014 and the 

Deposit content published on some other date. Defendants Controverting and Supplemental 

Statement of Facts ("DCSSOF"), ¶¶ 44, 45. (Doc. 85 at 9). 

Plaintiff's other arguments are addressed below. 

Plaintiff's Application Was Inaccurate. 

 The Court has already found that Plaintiff's application was inaccurate. DSSOF ¶ 47. 

(Doc. 80 at 9). Despite claiming a first publication date of July 3, 2014, the Deposit included 

copyrightable content that was added after July 3, 2014. The additional copyrightable material 

added after July 3, 2104 included the Nemo product photographs, the underlying Nemo 

product 360 code, and the Contact Us webpage DSSOF ¶¶ 1-6 (Doc. 80 at 1-2); DCSSOF, ¶ 

46 (Doc. 85 at 9). Plaintiff has already admitted "it is undisputed" that the website submitted 

to the Copyright Office included copyrightable material added after July 3, 2014. (Doc. 68 at 

5). 

Plaintiff Knew the Submitted Information Was Inaccurate. 

Plaintiff's heading states "The USCO Found No Intent to Deceive." (Doc. 81, p.11, 

PDF page 14 of 21). The Copyright Office's opinion on Plaintiff's state of mind is irrelevant. 

The Copyright Office rightfully never gave its opinion to the Court on Plaintiff's state of mind, 

because the Court never asked. Moreover, the Court and not the Copyright Office is tasked 

with determining whether Plaintiff was aware that the application included inaccurate 

information. See 17 U.S.C. § 411(b). 

As the Court noted in its June 9, 2016 Order, "Plaintiff does not argue that it 

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unknowingly provided false information to the copyright office." (Doc. 64 at 24). Since that 

time, Plaintiff has had multiple opportunities to deny it was aware of the Deposit's 

copyrightable content added after July 3, 2014. Plaintiff 's briefing has never denied, and still 

does not deny, that Plaintiff was aware of the additional copyrightable material, namely, the 

Nemo product photographs, the underlying Nemo product 360-view code, and the Contact Us 

webpage, all of which were added to the Deposit after July 3, 2014. Nor could it so deny, as 

Defendants pointed out in their Second Motion for Summary Judgment at pp. 6-9, and fn1. 

Plaintiff argues that its July 3, 2014 "publication date assertions never wavered." (Doc. 

81 at 14). Yet, Plaintiff did not bother to change the August 26, 2015 publication date in its 

application even after being questioned at deposition how it could enforce an August 26, 2015 

copyright against a 2014 infringement. DSSOF ¶ 14. It was only after Plaintiff was refused 

"special dispensation" for a flawed deposit, and after Defendants' first motion for summary 

judgment based on the August 26, 2015 publication date, that Plaintiff suddenly informed the 

Copyright Office that the publication date in the application needed to be changed to July 3, 

2014. DSSOF ¶¶ 36, 37, 38 (Doc. 80). 

The Status of Plaintiff's Registration Is Not Relevant to Defendants' Motion. 

The opinion of the Copyright Office did not suggest canceling Plaintiff's existing 

registration, because the Copyright Office legal counsel and Justice Department properly 

limited the response to the question posed by the Court. Whether the Copyright Office staff 

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ever takes action to go back and sua sponte cancel Plaintiff's registration is not relevant.1 

Dismissing a lawsuit under Subsection 411(b) can be done regardless of the status of the 

underlying registration, just as a lawsuit can go forward even if a registration is cancelled. 17 

U.S.C. 411(a). Registration does not confer copyright, nor can an erroneous registration take it 

away. Roberts v. Gordy, 181 F. Supp.3d 997, 1014 (S.D. Fla. 2016). However, the failure to 

properly register a work will preclude an infringement action predicated on that work. Id. 

Enforcement of the Underlying Deposit Results in Dismissal. 

 Plaintiff does not respond to Defendants' arguments that the Deposit's most recent 

copyrightable content, which is the only content Plaintiff could claim, was added after 

Defendants' alleged infringement. Plaintiff has never alleged that Defendants are guilty of 

copying whatever most recent copyrightable update Plaintiff was permitted to claim in the 

Deposit. 

Enforcement of the Original Application Results in Dismissal.

Enforcing the original August 26, 2015 first publication date and 2015 completion year 

would result in dismissal of the claim against Defendants' alleged 2014 copyright 

infringement. IMS Inquiry Manag. Sys, Ltd. v. Berkshire Inform. Sys., Inc, 307 F. Supp.2d 

521, 527 (S.D.N.Y.) (2004). 

 Plaintiff is correct that a publication date of July 3, 2014 would distinguish this case 

from IMS. Indeed, this is presumably why Plaintiff chose to submit a false affidavit to the 

 

1 The Copyright Office is unlikely to step on the Court's toes by taking unilateral action on a 

registration in the middle of a lawsuit. 

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Copyright Office that changed the publication date for its underlying deposit. However, 

Plaintiff's original application had a publication date of August 26, 2015. Assuming the Court 

elects to enforce the original application, Plaintiff's copyright claim should be dismissed 

because Defendants cannot have infringed in 2014 a work that was first completed and 

published in 2015. Id. 

 Enforcement of the original application is fair because Defendants were prejudiced by 

Plaintiff secretly changing all of the information on the copyright claim. Defendants original 

dispositive motion had multiple grounds for summary judgment on Plaintiff's copyright claim, 

based on the authors, the means of ownership, the year of completion, the date of first 

publication, the material excluded from claim, and the new material included in the claim. 

Contrary to Plaintiff's argument, none of the grounds relied on whether "pictures" were or 

were not included as part of Plaintiff's claimed content. Plaintiff was required to disclose to 

Defendants its changes to the copyright application, but did not do so until after the dispositive 

motions were filed and Defendants had filed a response to Plaintiff's dispositive motion. 

Enforcement of the Registration Results in Dismissal. 

Defendants have submitted evidence, and Plaintiff does not contest, that a copy of the 

Work was first licensed for sale on June 12, 2014. DSSOF ¶ 16 (Doc. 80); PCSSOF ¶ 16 

(Doc. 82). However, Plaintiff argues that it "did not authorize for download" the Work until 

July 3, 2014. There is nothing in the June 12, 2014 license that states the Work could not 

downloaded until July 3, 2014. Even Plaintiff admits that the Work was completed before 

July 3, 2014. DSSOF ¶¶ 15, 38 (Doc. 80); PCSSOF ¶¶ 15, 38 (Doc. 82). Plaintiff has not 

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submitted any evidence that the copy sold on June 12, 2014 was delayed for download or 

publication until on or after July 3, 2014. Thus, Plaintiff's copyright registration with a first 

publication date of July 3, 2014 claims nothing. Nothing was first published on that date. 

The Court Is Not Required to Take the Registration at Face Value. 

The Court does not need to cancel the registration in order to disregard the information 

stated therein. The Court does not even need to find fraud. The date of first publication on the 

issued registration is wrong, and the Copyright Office has confirmed that it is wrong. The 

Court is free to look at the evidence and make up its mind as to what the "real" date of first 

publication is for Plaintiff's Deposit. See 17 U.S.C. § 410(C). The real date of first 

publication is sometime after Defendants' alleged infringement, which necessitates dismissal 

of Plaintiff's copyright claim. IMS Inquiry Manag. Sys, Ltd., 307 F. Supp.2d at 527. 

RESPECTFULLY SUBMITTED this 3rd day of November, 2017. 

PETRIE & VENDITTI, PLC 

By: 

/s/ Jason M. Venditti 

 Jason M. Venditti 

 20860 N. Tatum Blvd., Suite 300 

Phoenix, Arizona 85050 

Attorneys for Defendants 

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CERTIFICATE OF SERVICE 

 I hereby certify that on November 3, 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 88 Filed 11/03/17 Page 8 of 8