Facts

Alla Anatolyevna Zorikova owns the copyright in the audiovisual work "Ballet Class Viktor Kabaniaev," a ballet instructional DVD. Kineticflix LLC is a web-based business that rented physical copies of fitness and dance DVDs by shipping them to customers. Once a customer was finished with the DVD, they would return it and Kineticflix would send them the next DVD on their personal queue. The "Ballet Class Viktor Kabaniaev" DVD was rented from Kinecticflix twenty times between 2008 and 2014. After Joshua and Candee Parker, the owners of Kinecticflix, noticed that their DVD copy of the work was no longer in the inventory, they purchased a copy of it on Amazon in March 2019 for $12.95. Since then, the only person that attempted to rent it was Zorikova. On May 15, 2019, Zorikova brought suit against Kinecticflix, asserting claims of copyright infringement and unfair competition under California law.

PLAINTIFF'S CONTENTIONS: Plaintiff contended that she did not authorize or license defendant to copy, rent, sell, download, display or distribute the work and that defendant infringed her copyright by distributing copies of the work to its customers as part of its DVD rental business. Plaintiff argued that she has not distributed a physical copy of the work since 2014 and instead has made copies available only through streaming and downloads and thus, plaintiffs must have downloaded the files from Amazon and burned it onto DVDs. Plaintiff also alleged that the work qualifies as computer software because the searchable menu embedded in the work was an electronic representation of moving visual images in the form of encoded digital data that incorporated analytical software and enabled video search and intrusion detection.

DEFENDANT'S CONTENTIONS: Defendant asserted that the first sale defense applied because they purchased a single new DVD copy of the work and never copied it in any way.

Result

The court granted defendant's motion for summary judgment.