512 F. App'x 701
9th Cir.2013Background
- Stern appeals district court rulings on multiple fronts arising from his post on a listserv and related conduct by Robert and Sara Weinstein.
- District court granted in part the Weinstains’ Rule 12(b)(6) motions to dismiss Stern’s invasions of privacy claim under California Constitution article I, §1.
- District court granted summary judgment to defendants on Stern’s remaining copyright claims, holding Stern’s post not copyrightable.
- District court denied Stern’s motion to amend the complaint to add theft, receiving stolen property, and §17200 claims.
- District court awarded attorneys’ fees to defendants under the Copyright Act and denied Stern’s recusal motion.
- Court of Appeals affirms all challenged rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Privacy claim sufficiency | Stern contends disclosure of the listserv post invaded privacy | Disclosure did not reach the high standard of egregious breach under California law | Claim not actionable; affirmed dismissal |
| CFAA/SCA/PC 502 liability | Weinsteins violated access restrictions and harmed Stern | Weinstein access was authorized; forwarding did not violate statutes; derivative/direct liability insufficient | No liability; no underlying violation; dismissal affirmed |
| Amendment to add new claims | Desires to add theft, receiving stolen property, and §17200 claims | Amendment would be futile; procedural faults | No abuse of discretion; denial affirmed |
| Copyright originality and summary judgment | Post is original and protectable | Post lacks modicum of creativity; not copyrightable | Post not copyrightable; summary judgment affirmed; fair use not reached |
| Attorneys’ fees under the Copyright Act | Fees should not be awarded | Total success and lack of reasonableness justify fee award | Fee award affirmed |
Key Cases Cited
- United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc; limits on 'without authorization' and 'exceeding authorized access')
- LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009) (interpretation of access permissions for CFAA/SCA)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading standards; threadbare recitals insufficient)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (pleading standard; allegations must be plausible)
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (U.S. 1991) (originality requires independent creation plus modicum of creativity)
- Love v. Associated Newspapers, Ltd., 611 F.3d 601 (9th Cir. 2010) (deterrence rationale for awarding fees under the Copyright Act)