IP Law Daily, COPYRIGHT—N.D. Cal.: Motion to dismiss a digital media company’s second amended complaint partly granted, (Oct 31, 2025)

By Carolin Dennis, B.Sc., LL.B., LL.M.

District court dismissed the claims for contributory copyright infringement, direct trademark infringement claim, and state law claims.

The federal district court in San Jose, California, denied in part and granted in part a news and media company’s motion to dismiss the digital media company’s second amended complaint claims in connection with unauthorized publication of articles. The court dismissed the digital media company’s claims for contributory copyright infringement, direct trademark infringement claim, and the state law claims for unfair competition and misappropriation; but determined that Comeback brought sufficient allegations to support a claim for vicarious copyright infringement (Comeback Media, Inc. v. Particle Media, Inc., No. 3:25-cv-03298-CRB (N.D. Cal. Oct. 30, 2025)).

Background. Comeback Media, Inc. d/b/a Next Impulse Sports (Comeback) is a digital media company that publishes articles on its websites and generates revenue through syndication deals with news apps and websites. Next Impulse, one of Comeback’s news websites, had a non-contractual relationship with Particle Media, Inc. (NewsBreak), an app and website that platforms publisher content. NewsBreak would direct users to Next Impulse’s website from article previews on its platform. The arrangement was profitable for Comeback. However, in early 2025, visits to Next Impulse dropped precipitously. Comeback discovered a company called Digital Next, Inc. (Total Impulse) had been copying Comeback’s articles and passing them off as its own on NewsBreak. The copies kept the same content, pictures, and even videos with many articles stating the posts originated from Next Impulse. Total Impulse was a “Verified Publisher,” meaning it had a formal partnership with NewsBreak and curated its own content. Comeback claimed that NewsBreak failed to act against Total Impulse's infringement despite being aware of it, resulting in further harm to Comeback's business. Comeback alleged that Total Impulse and the individual defendants copied and published Comeback’s news articles on NewsBreak stealing the traffic and revenue that would otherwise belong to Comeback.

Comeback brought an action against NewsBreak, Total Impulse, and individual defendants for claims stemming from alleged infringement of Comeback’s copyrights and trademark. Comeback asserted claims for copyright infringement, trademark infringement, unfair competition, and misappropriation. NewsBreak moved to dismiss the claims against it by arguing that Comeback failed to state claims for copyright and trademark infringement and that Comeback’s state law claims are preempted.

Contributory copyright infringement. NewsBreak contended that Comeback failed to allege the elements of a contributory copyright infringement claim. The district court noted that Comeback’s strongest allegations for constructive knowledge involve Total Impulse’s blatant infringement. However, the mere existence of Total Impulse’s infringing material on NewsBreak is insufficient on its own to establish NewsBreak should have known of the infringement. Thus, the district court concluded that Comeback failed to adequately allege that NewsBreak had the requisite specific knowledge of infringement.

Similarly, Comeback failed to establish material contribution or inducement. Under a material contribution theory in the online context, a system operator is liable if it has knowledge that “specific infringing material is available using its system, and can take simple measures to prevent further damage to copyrighted works, yet continues to provide access to infringing works.” By alleging NewsBreak suspended Total Impulse’s account upon discovery of its misconduct, Comeback failed to show that NewsBreak continued to provide access to the infringing works. Likewise, Comeback’s inducement theory failed because Comeback must show NewsBreak had an “objective to infringe copyrights,” which necessarily fails if NewsBreak took affirmative steps to stop Total Impulse’s infringement.

Since Comeback failed to sufficiently plead both the knowledge and material contribution/inducement elements of a contributory copyright infringement claim, the district court granted NewsBreak’s motion to dismiss the contributory copyright infringement claim.

Vicarious copyright infringement. NewsBreak argued that Comeback’s allegations regarding NewsBreak’s verified publisher process and content moderation are conclusory. NewsBreak pointed to its Terms of Service which purport to clarify that “publishers and contributors are ‘solely responsible’ for their content” and that they should make sure the content does not infringe on intellectual property rights. However, the Terms of Service also make clear that “NewsBreak may, in its sole discretion, determine a publisher’s Content to be hosted on its Publisher Services and remove some or all of the Content for any reason.” The district court noted that Comeback showed moderation in practice by alleging NewsBreak suspended Total Impulse’s account due to misconduct. Accordingly, Comeback sufficiently alleged that NewsBreak had the right and ability to supervise infringing conduct.

Comeback also adequately alleged that NewsBreak had a direct financial benefit from Total Impulse’s infringement. Comeback raised the plausible inference that NewsBreak derived financial benefit from Total Impulse’s infringement. Comeback alleged that NewsBreak would get traffic and ad revenue from articles published on its platform and explained how Total Impulse had copied its articles, which led to a collapse of traffic to Next Impulse’s articles.

The district court determined that Comeback brought sufficient allegations to support a claim for vicarious copyright infringement, and denied NewsBreak’s motion to dismiss the claim for vicarious copyright infringement.

Trademark infringement. NewsBreak argued that Comeback failed to allege that NewsBreak directly used the allegedly infringing mark. Comeback asserted that NewsBreak “directly used” Next Impulse’s mark by “hosting and displaying” Total Impulse’s mark on their stolen articles via the NewsBreak platform. However, the district court found that this theory is unsuccessful because the use in question was being carried out by Total Impulse, not NewsBreak. Additionally, Comeback’s argument that NewsBreak’s search service sending users to Total Impulse constituted direct use also falls short because it, too, points to Total Impulse directly using the mark. The district court concluded that Comeback’s conduct would, at most, merely facilitate Total Impulse’s use. Accordingly, the district court dismissed Comeback’s direct trademark infringement claim against NewsBreak.

Preemption. NewsBreak asserted that the Copyright Act preempts both of Comeback’s state law claims for unfair competition and misappropriation. Comeback sought to distinguish its unfair competition claim by framing it as challenging NewsBreak’s lax verification and refusal to restore referrals. However, a review of Comeback’s complaint made it clear that it is really basing the claim on copyright. Comeback specifically alleged that the “lax and inadequate verification process,” which allows “bad actors to easily obtain verified status and monetize stolen content, constitutes an unfair business practice.” The district court concluded that because the allegations Comeback relied on “involve the encouragement or inducement of copyright infringement,” the Copyright Act preempts Comeback’s unfair competition claim.

Comeback styled the misappropriation claim as being about the wrongful taking of Comeback’s business value. Comeback alleged NewsBreak wrongfully exercised dominion over Comeback’s property by copying and distributing these articles and that this substantial interference with “Comeback’s ownership rights” deprived it of economic benefit. The district court found that such a claim is not qualitatively different from the rights protected under copyright law. Therefore, the district court concluded that the underlying nature of Comeback’s state law claims is part and parcel of a copyright claim and dismissed them.

Accordingly, NewsBreak’s motion to dismiss was granted in part and denied in part.

The Case is No. 3:25-cv-03298-CRB.

Judge: Breyer, C.

Attorneys: Darren Heitner (Heitner Legal P.L.L.C.) for Comeback Media, Inc.; Sheri B. Pan (Zwillgen Law LLP) for Particle Media, Inc.

Companies: Comeback Media, Inc. d/b/a Next Impulse Sports; Particle Media, Inc.; Digital Next, Inc.

Cases: Copyright Trademark TechnologyInternet CaliforniaNews