United States District Court, N.D. California
Anne Elizabeth Kearns, Garth Aaron Rosengren, Kenneth E. Keller, Michael David Lisi, Krieg, Keller, Sloan, Reilley & Roman LLP, San Francisco, CA, Stevan Lieberman, Greenberg & Lieberman, LLC, Washington, DC, for Plaintiff.
Michelle Marie McCliman, McCliman Law Firm, PC, Ladera Ranch, CA, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT
CHARLES R. BREYER, District Judge.
This is a copyright case between business competitors who sell virtual animals in an online simulated world known as Second Life. Presently before the Court is Plaintiff/Counterclaim Defendant Amaretto Ranch Breedables' (" Amaretto" ) Motion for Summary Judgment on (1) Defendant/Counterclaim Plaintiff Ozimals, Inc.'s (" Ozimals" ) copyright infringement counterclaim; (2) Amaretto's declaratory judgment claim, and (3) Amaretto's copyright misuse claim. Dkt. 124.
A. Threshold Evidentiary Objections
Both parties lodge voluminous generic objections to huge portions of the record. E.g., Opp'n at 2-3 (over fifty objections in two pages), Reply at 12-14. Many of the so-called objections are in fact arguments about the significance of the evidence, not their admissibility. The Court's review revealed that the objections are meritless or, at best, grossly overbroad and irrelevant as to material portions of the record. This Court need not address boilerplate evidentiary objections that the parties themselves deem unworthy of development, Californians for Disability Rights, Inc. v. Cal. Dep't of Transp., 249 F.R.D. 334, 349-50 (N.D.Cal.2008); Dukes v. Wal-Mart, Inc., 222 F.R.D. 189, 199 (N.D.Cal.2004); Cmtys. Actively Living Indep. & Free v. City of L.A., No. CV09-0287CBM (RZX), 2011 WL 4595993, at *8 (C.D.Cal. Feb. 10, 2011), and the Court accordingly summarily overrules the objections.
B. Factual Background
Second Life is an online virtual world created by the company Linden Research. Represented in the virtual world by an avatar, users of Second Life participate in activities like socializing with other users, traveling the virtual world, and engaging in commerce using the Second Life currency, the Linden dollar, which users can get by paying Linden real money. Stibbards Decl. (Ex. A to dkt. 124-1) ¶¶ 6-9.
Third-party software developers, using a programming language unique to Second Life, can create and market their own 3-D objects that will operate in Second Life's virtual world. Id. ¶¶ 10-13. The parties here are two such companies that developed competing " breedable animals" for purchase and use in Second Life; Ozimals developed a virtual bunny, and Amaretto a virtual horse. Sargent Decl. (dkt. 129-1) ¶¶ 2. The " breedable" label reflects that the virtual animals were programmed to function in certain ways like real animals in that, for example, they reproduced and passed on genetic traits. Jadzewski Decl. (Ex. B to dkt. 124-1) ¶ 11.
Ozimals' bunny product appeared first, Sargent Decl. (dkt. 129-1) ¶ 6, and after some informal communications between representatives of Ozimals and Amaretto in the ensuing months about the possibility that the horse product Amaretto was developing infringed Ozimals' copyright, id., Amaretto released its virtual horse. Id. ¶ 9. Ozimals sent Amaretto a cease-and-desist letter in November 2010, see Second Amended Compl. Ex. 1, and a few weeks later Ozimals received a registration certificate from the U.S. Copyright Office for its " Ozimals Animal Scripts" computer program (the " '661 Copyright" ), Kearns Decl. (dkt. 124-1) Ex. I.
The following month Ozimals sent a Digital Millennium Copyright Act (DMCA) takedown notice to Linden, asserting that Amaretto's horses infringed Ozimals' copyright, and requesting that Linden remove the horse products. See Second Amended Compl. Ex. 3. Amaretto responded with a counter-DMCA notice to Linden, id. Ex. 4, and filed the instant action in this Court, where it secured a temporary restraining order and preliminary injunction preventing Linden from removing the virtual horses. See dkts. 29, 49.
Among other claims, Amaretto alleged that Ozimals' DMCA notice was copyright misuse under 17 U.S.C. § 512(f), and also sought a declaration from this Court that its horses did not infringe. See Complaint (dkt. 1) ¶ 35, Application for TRO (dkt. 3). ...