NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 21 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUPERAMA CORPORATION, INC., DBA No. 19-55981 U.S.A. Sumo, a Nevada Corporation, D.C. No. Plaintiff-Appellant, 2:19-cv-03059-MWF-JC

v.

MEMORANDUM*

TOKYO BROADCASTING SYSTEM

TELEVISION, INC.; DOES, 1-100,

inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Submitted October 8, 2020** Pasadena, California

Before: M. SMITH and LEE, Circuit Judges, and CARDONE,*** District Judge.

Superama Corporation, Inc. (“Superama”) appeals the district court’s grant of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. Tokyo Broadcasting System Television, Inc.’s (“TBS”) motion to dismiss for lack

of subject matter jurisdiction. We have jurisdiction under 28 U.S.C. § 1291, and we

review de novo a district court’s dismissal under Rule 12(b)(1) for lack of subject

matter jurisdiction. See M.S. v. Brown, 902 F.3d 1076, 1082 (9th Cir. 2018).

Because the parties are familiar with the facts, we do not recount them here, except

as necessary to provide context to our ruling. We accept well-pleaded factual

allegations of the complaint as true and draw all reasonable inferences in the

plaintiff’s favor. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). We affirm.

Superama organizes the U.S. Sumo Open and makes videos and photographs

from the event available on YouTube. TBS inquired about licensing the footage for

rebroadcasting on TV in Japan, but it never obtained a license. Superama later

discovered that TBS had downloaded the copyrighted event footage, materially

altered it, and rebroadcasted it throughout Japan — all without authorization.

Superama filed suit against TBS in the Central District of California for direct

copyright infringement in violation of the Copyright Act, 17 U.S.C. §§ 501, et seq.

In its complaint, Superama does not allege that the copyrighted footage was copied,

reproduced, transmitted, or distributed in the United States. The district court

granted TBS’s motion to dismiss for lack of subject matter jurisdiction, finding that

the alleged infringing activity took place entirely in Japan. Superama timely

2 appealed, arguing that there is subject matter jurisdiction because the downloaded

material was stored on servers in the United States.

1. We have previously held that “the United States copyright laws do not

reach acts of infringement that take place entirely abroad.” Subafilms, Ltd. v. MGM-

Pathe Commc’ns Co., 24 F.3d 1088, 1098 (9th Cir. 1994) (en banc). This holding

derives from the longstanding rule that “[i]n general, United States copyrights laws

do not have extraterritorial effect, and therefore, infringing actions that take place

entirely outside the United States are not actionable.” Id. at 1091 (internal citations

omitted). Dismissal for lack of subject matter jurisdiction was thus proper here, as

all alleged infringing activity took place outside of the United States.

We have found subject matter jurisdiction where an initial infringing act in

the United States made further infringement abroad possible. See L.A. News Serv.

v. Reuters Television Int’l, Ltd., 149 F.3d 987, 992 (9th Cir. 1998). Superama argues

that jurisdiction exists because copyrighted material was downloaded from a United

States server. But Superama cites no case holding that a download occurs where

material is stored. Rather, because the infringing act of downloading the material

occurred on a computer outside the United States, there was no act in the United

States to establish jurisdiction. We also will not assume that some activity occurred

in the United States based only on Superama’s allegation that the material might

have been distributed outside of Japan. Thus, neither Subafilms nor L.A. News

3 provide support for subject matter jurisdiction.

Superama advances a highly technical argument that infringement occurred

in the United States because an exact copy of the footage was made on YouTube’s

server before it was downloaded in Japan. To advance this argument, Superama

relies on Sega Enters., Ltd. v. Accolade, Inc., 977 F.2d 1510, 1519 (9th Cir. 1992)

(holding that intentionally copying software code during reverse-engineering may

be a copyright violation) and MAI Sys. Corp. v. Peak Comput., Inc., 991 F.2d 511,

518 (9th Cir. 1993) (holding that unlicensed “copying” occurred when copyrighted

software was transferred from a storage device to a computer in the United States).

But neither case establishes a rule that infringement occurs when a download abroad

automatically creates a copy of the material on a United States server. There is thus

no basis for finding jurisdiction where downloaded material is stored in the United

States, but all infringing activity takes place in another country.

2. Similarly, Superama’s reliance on the predicate act doctrine is

misplaced. Under that doctrine, a plaintiff may recover damages for foreign

infringement when a predicate act of infringement took place in the United States.

See L.A. News, 149 F.3d at 991–92. But this doctrine is inapplicable here, where the

only asserted predicate act of infringement — the download of copyrighted material

— occurred outside of the United States. The district court’s dismissal of

Superama’s complaint for lack of subject matter jurisdiction was therefore proper.

4 3. Finally, because Superama cannot plausibly allege that any

infringement occurred in the United States, the district court did not abuse its

discretion in denying its request for leave to amend.

AFFIRMED.

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