Programmers Filed a "Catch-All" Lawsuit, Making no Specific Allegations Against GitHub or Microsoft

ARGUMENT

II. PLAINTIFFS FAIL TO STATE A DMCA CLAIM.

B. Count I Impermissibly Lumps Together Multiple Defendants, Claims, And Theories Of Liability.

Plaintiffs cannot get around Stevens, but in any event the “failure to allege what role each Defendant played in the alleged harm makes it exceedingly difficult, if not impossible, for individual Defendants to respond to [the] allegations.” In re iPhone Application Litig., No. 11- MD-02250, 2011 WL 4403963, at *8 (N.D. Cal. Sept. 20, 2011). Such a pleading therefore does not satisfy Rule 8(a). Id.; see Destfino v. Reiswig, 630 F.3d 952, 958-59 (9th Cir. 2011) (affirming dismissal of “shotgun pleading”).

Count I is a textbook example of this problem. It is alleged against “All Defendants.” Over the course of a nearly 30-paragraph thicket of assertions, Plaintiffs appear to claim violation of all five of the statute’s prohibitions. Compl. ¶¶ 142-71. They also purport, by parenthetical under the title of “COUNT I,” to advance “(Direct, Vicarious, and Contributory)” theories of liability. Id. at 34. No allegation is specific to either GitHub or Microsoft. Nothing elsewhere in the Complaint explains what any particular Defendant is supposed to have done.

This defect is worst with respect to Microsoft. Plaintiffs allege that Microsoft owns GitHub and is an investor in OpenAI. Compl. ¶¶ 5-7. But it is basic corporate law that absent some disregard of corporate formalities, Microsoft cannot be held liable as a corporate parent or shareholder. See United States v. Bestfoods, 524 U.S. 51, 61 (1998). As for Microsoft’s subsidiary GitHub, there is no explanation of what GitHub supposedly did with respect to the alteration or removal of CMI. And since there is no allegation suggesting that GitHub or Microsoft engaged in primary conduct involving CMI, Plaintiffs presumably mean to sweep them in with the “vicarious” and “contributory” labels. But § 1202 does not provide for such theories of liability on its face, and it is doubtful that the Ninth Circuit would find § 1202’s doublescienter requirement compatible with theories of secondary liability. Cf. Petroliam Nasional Berhad v. GoDaddy.com, Inc., 737 F.3d 546 (9th Cir. 2013) (refusing extra-statutory contributory liability theory under anti-cybersquatting statute in part because of “bad faith” requirement).

Plaintiffs are claiming entitlement to statutory damages of over $9 billion for their § 1202 claims. Compl. at 52 n.42. Defendants cannot properly address these claims without knowing what Plaintiffs say each Defendant did to violate the statute.