UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
June 25, 2010
VITALIX S.A. DE C.V., PLAINTIFF,
GRUPO CAROSSI SOCIEDAD ANONIMA ET AL., DEFENDANTS.
The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge
ORDER re: Defendants' Motion to Dismiss 
Defendants' Motion to Dismiss Plaintiff's First Amended Complaint for Failure to State a Claim, pursuant to Rule 12(b)(6), was set for hearing on June 8, 2010. Having taken the matter under submission on June 7, 2010, and having reviewed all papers submitted pertaining to this motion, the Court NOW FINDS AND RULES AS FOLLOWS:
Defendants' Motion to Dismiss is GRANTED with leave to amend. Plaintiff's First Amended Complaint fails to present facts sufficient to support that the Florida Defendants directly infringed on Plaintiff's copyright. Copying, an element of direct copyright infringement, may be established by showing that the works in question are "substantially similar in their protected elements" and that the infringing party had access to the copyrighted work. Metcalf v. Bochco, 294 F.3d 1069, 1072 (9th Cir. 2002). Plaintiff alleged that the videos are substantially similar, but this was merely a recitation of the element, lacking factual support.
Plaintiff's First Amended Complaint also fails to present facts sufficient to support that the Broadcasting Defendants are liable for vicarious copyright infringement. To state a claim for vicarious copyright infringement a plaintiff must allege that the defendant had (1) the right and ability to supervise the infringing activity, and (2) a direct financial interest in the infringing activity. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1022 (9th Cir. 2001). Plaintiff alleged that the Broadcasting Defendants had the ability to deny the Florida Defendants' request to broadcast the Offending Videos, but this does not amount to the right and ability to supervise the infringing activity.
Accordingly, for the foregoing reasons, the Court GRANTS Defendants' Motion to Dismiss Plaintiff's First Amended Complaint for Failure to State a Claim, with leave to amend.
Plaintiff shall file its Amended Complaint no later than 20 days from the entry of this order.
IT IS SO ORDERED.
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