NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 23 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAYMOND LONG; BANDHA YOGA No. 20-15036

PUBLICATIONS, LLC,

D.C. No. 4:17-cv-02758-PJH Plaintiffs-Appellants,

v. MEMORANDUM*

TAMMY DORSET; FACEBOOK, INC.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted March 10, 2021 San Francisco, California

Before: GOULD and FRIEDLAND, Circuit Judges, and ERICKSEN,** District Judge.

Raymond Long1 is a physician and yoga practitioner who owns the

copyrights to books and scientific illustrations about the anatomical effects of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota, sitting by designation. 1 We refer to Plaintiffs Raymond Long and his corporation, Bandha Yoga Publications LLC, collectively as “Long.” yoga. Long operates a website that features some of those copyrighted texts and

illustrations. To promote his work, Long also maintains a Facebook business page

where he markets his intellectual property. An unknown hacker using the

pseudonym Tammy Dorset illicitly gained administrator access to Long’s

Facebook page. Once in control, Dorset posted on the page links that displayed

illustrations and text to which Long owned the copyright; the links directed users

to a third-party website that contained further infringing copies of Long’s

copyrighted work and that installed a software virus on viewers’ computers. Long

contacted Facebook, and after eight days of email communications, Facebook

revoked Dorset’s administrator access, an action that automatically deleted all of

Dorset’s posts, including those that contained or linked to infringing material.

Long sued Facebook, alleging that its failure to timely remove Dorset’s

infringing posts made it directly, contributorily, and vicariously liable for

infringement of his exclusive copyrights. He also raised negligence and aiding and

abetting claims under state law.2 The district court dismissed each of these claims.

We affirm.

1. “[D]irect infringement requires the plaintiff to show causation (also

referred to as ‘volitional conduct’) by the defendant.” Perfect 10, Inc. v.

2 The district court also dismissed Long’s breach of contract claim and Unfair Competition Law claim; Long does not appeal the grounds on which the district court dismissed those claims.

2 Giganews, Inc., 847 F.3d 657, 666 (9th Cir. 2017). Long has not stated a claim for

direct infringement because the facts pleaded in his Complaint do not allege

volitional conduct by Facebook. In other words, he does not assert that the

“distribution [of the copyrighted material did] not happen automatically” or that

Facebook “exercised control,” “selected any material for upload, download,

transmission, or storage; or instigated any copying, storage, or distribution.” Id. at

669-70. Rather, it was Dorset who “cause[d] the copying.” Id. at 666. Long

argues that Facebook’s failure to promptly remove Dorset’s posts amounted to

volitional conduct. But we have rejected such failure-to-act arguments when, as

here, an online service provider “took affirmative action to address the claims” by

requesting further information from the copyright holder upon being informed of

potential infringement on its website. VHT, Inc. v. Zillow Grp., Inc., 918 F.3d 723,

734 (9th Cir. 2019).

2. Long has failed to state a claim for vicarious infringement because he has

not pleaded facts indicating that Facebook “derive[d] a direct financial benefit

from the direct infringement.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d

1146, 1173 (9th Cir. 2007). Long’s allegations that he paid Facebook to post

advertisements for his business page on users’ newsfeeds do not suffice as

allegations that Facebook made money from Dorset’s infringing posts on that page

specifically.

3 3. We affirm the dismissal of Long’s contributory infringement claim.

Although Long alleges that he emailed Facebook screenshots of Dorset’s posts

that, according to Long, displayed his copyrighted work,3 he failed to plausibly

allege that Facebook had “actual knowledge that specific infringing material [was]

available using its system.” Id. at 1172 (quoting A&M Records, Inc. v. Napster,

Inc., 239 F.3d 1004, 1022 (9th Cir. 2001)). Viewing the screenshots in conjunction

with the text of Long’s accompanying emails, the list of links to his website that

Long also attached (which themselves included a different set of text and images),

and Long’s simultaneous request to restore his page administrator status, the

Complaint fails to plausibly establish that Facebook actually knew precisely what

infringing material was available on Facebook.

This defect could theoretically, however, be “cured by the allegation of other

facts.” Cook, Perkiss & Liehe Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242,

247 (9th Cir. 1990). For instance, if Long could plead facts describing a different

communication to Facebook that clearly identified a set of specific infringing

images on Facebook and, at the same time, clearly indicated his ownership of those

specific images, he could state a prima facie claim for contributory infringement,

3 We may consider the emails between Long and Facebook and the attachments to those emails because they were referenced in the Complaint and because Long did not question their authenticity before the district court or on appeal. See No. 84 Emp.-Teamster Joint Council Pension Tr. Fund v. Am. W. Holding Corp., 320 F.3d 920, 925 n.2 (9th Cir. 2003).

4 and the burden would then shift to Facebook to prove any affirmative defenses.

We note that amendment would not necessarily be futile. The court held

that Facebook was entitled to the safe harbor defenses under the Digital

Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512, because—assuming

without deciding that Long’s emails satisfied § 512(c)(3)(A)’s requirements for

takedown notices—Facebook’s response had been expeditious as a matter of law.

The DMCA is an affirmative defense, Adobe Sys. Inc. v. Christenson, 809 F.3d

1071, 1079 (9th Cir. 2015); Facebook’s entitlement to it must therefore be

“obvious on the face of [the] complaint” for it to be raised in a motion to dismiss,

Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013). Because an

amended Complaint may plead new facts informing both whether Long’s

communications satisfied § 512(c)(3)(A) and whether, if so, Facebook’s response

was expeditious, the district court’s DMCA holding does not provide an

independent alternative ground for dismissal with prejudice. Therefore, we direct

the district court to vacate the dismissal with prejudice and enter an order

dismissing the claim without prejudice and granting Long leave to amend.

4. Facebook has immunity from Long’s tort claims under 47 U.S.C. § 230.

Long contends that Facebook was negligent in (1) enabling Dorset to access

Long’s business page; (2) failing to maintain automated responders that could refer

user complaints to appropriate Facebook departments; and (3) failing to promptly

5 remove Dorset’s infringing posts. He also asserts that Facebook aided and abetted

Dorset through its inaction. But § 230 bars state law claims that seek to treat an

online service provider as the publisher of another user’s content, and “removing

content”—or allowing content—“is something publishers do.” Barnes v. Yahoo!,

Inc., 570 F.3d 1096, 1103 (9th Cir. 2009); see id. (“[S]ection 230 protects from

liability ‘any activity that can be boiled down to deciding whether to exclude

material that third parties seek to post online.’” (quoting Fair Hous. Council of San

Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1170-71 (9th Cir. 2008)

(en banc))); § 230(c)(1). Nor does a service provider lose § 230 immunity by

providing “neutral tools” that a third party “use[s] to publish” unlawful material

when the provider does “absolutely nothing to encourage the posting of . . . [that]

content.” Roommates.com, 521 F.3d at 1171.4

AFFIRMED.

4 Long’s reliance on this statute’s intellectual property exception, see § 230(e)(2), is unavailing: not only are Long’s state tort claims unrelated to intellectual property, but the exception does not even apply to state laws protecting intellectual property, Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1118-19 (9th Cir. 2007).

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