Comeback Media, Inc. v. Particle Media, Inc. et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
COMEBACK MEDIA, INC.,
Plaintiff,
v.
PARTICLE MEDIA, INC., et al.,
Defendants.
Case No. 25-cv-03298-CRB
ORDER GRANTING IN PART AND
DENYING IN PART PARTICLE
MEDIA, INC.’S MOTION TO
DISMISS
Plaintiff Comeback Media, Inc. d/b/a Next Impulse Sports (“Comeback”) brought
this action against Defendants Particle Media, Inc. (“NewsBreak”), Digital Next, Inc.
(“Total Impulse”), and individual defendants for claims stemming from alleged
infringement of Comeback’s copyrights and trademark. SAC (dkt. 25) at ¶¶ 1–4.
Comeback alleges 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. Id. Comeback asserts claims for copyright infringement,
trademark infringement, unfair competition, and misappropriation. Id. ¶¶ 151–197.
NewsBreak now moves to dismiss the claims against it. Mot. (dkt. 28). The Court
GRANTS the motion in part and DENIES in part.1
I. 	BACKGROUND
Comeback is a digital media company that publishes articles on its websites.
SAC ¶ 13. Comeback built its business around earning revenue from syndication deals
with news apps and websites, which aggregate articles from publishers into a customizable
1 Pursuant to Civil Local Rule 7-1(b), the Court finds this matter suitable for resolution without
oral argument.
Case 3:25-cv-03298-CRB Document 33 Filed 10/30/25 Page 1 of 10

2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
newsfeed for a user. Id. ¶ 14. Comeback gets a share of the advertising revenue from user
visits to their content on apps and websites. Id. ¶ 15.
Next Impulse, one of Comeback’s news websites, had a non-contractual
relationship with NewsBreak, an app and website that platforms publisher content. SAC ¶
17. Accordingly, NewsBreak would direct users to Next Impulse’s website from article
previews on its platform. Id. The arrangement was profitable for Comeback—generating
$250,000 per month in November 2024. Id. ¶ 18. But in early 2025, visits to Next
Impulse dropped precipitously. Id. ¶ 19.
Comeback discovered a company called Total Impulse had been copying
Comeback’s articles and passing them off as its own on NewsBreak. SAC ¶ 21. The
copies kept the same content, pictures, and even videos—with many articles stating the
posts originated from Next Impulse. Id. ¶¶ 52, 60. Total Impulse was a “Verified
Publisher,” meaning it had a formal partnership with NewsBreak and curated its own
content. Id. ¶ 22. Total Impulse obtained this status on January 16, 2025—before it had
any website, content, or writers. Id. Comeback claims Total Impulse induced NewsBreak
to redirect referrals to Next Impulse articles to Total Impulse, instead. Id. ¶ 26.
Not only is Total Impulse alleged to have stolen Next Impulse articles, but it is also
alleged to have stolen Next Impulse’s trademark, too. SAC ¶ 39–42.
Figure 1: Next Impulse Mark 	Figure 2: Total Impulse Mark
Id. ¶ 42.
Comeback alleges NewsBreak somehow discovered the misconduct and suspended
Total Impulse’s account. SAC ¶ 26. Comeback alleges that Total Impulse was hardly the
first to infringe articles from other publishers on NewsBreak and that NewsBreak’s
Case 3:25-cv-03298-CRB Document 33 Filed 10/30/25 Page 2 of 10

3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
verification practices did nothing to stop bad actors. Id. ¶¶ 23, 27. Even after NewsBreak
became aware of Total Impulse’s infringement, it did not reinstate referrals to Next
Impulse, despite Comeback’s request. Id. ¶ 28.
Comeback has been harmed from this alleged misconduct. It lost basically all of
the revenue from NewsBreak referrals—even impacting syndication with other platforms.
SAC ¶¶ 29–30. Next Impulse also lost many of its writers because they could not earn any
money from the collapse in referrals. Id. ¶¶ 31–34. Comeback even lost a potential buyer
due to the financial hit to Next Impulse. Id. ¶¶ 35–38.
In preparation for this lawsuit, Comeback obtained copyright registrations for ten of
the stolen articles. Then, on April 11, 2025, Comeback filed the instant action. Compl.
(dkt. 1). Before NewsBreak filed its motion to dismiss, Comeback amended its complaint
twice—the second amendment by leave of this Court. See Motion for Leave (dkt. 18). In
its Second Amended Complaint, Comeback brings five claims against NewsBreak:
trademark infringement, vicarious copyright infringement, contributory copyright
infringement, unfair competition (Cal. Bus. & Prof. Code § 17200), and common law
misappropriation. SAC ¶¶ 159–197. NewsBreak moved to dismiss all the claims against
it. Mot.
II. 	LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a
complaint if it fails to state a claim upon which relief can be granted. To survive a Rule
12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct.
1955, 167 L. Ed. 2d 929 (2007). A claim is facially plausible when the plaintiff pleads
facts that “allow the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed.
2d 868 (2009) (internal citation omitted). And a court must construe the alleged facts in
the light most favorable to the plaintiff. See Retail Prop. Trust v. United Bhd. of
Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014) (providing the court must
Case 3:25-cv-03298-CRB Document 33 Filed 10/30/25 Page 3 of 10

4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
“draw all reasonable inferences in favor of the nonmoving party” for a Rule 12(b)(6)
motion). Courts, however, are not “required to accept as true allegations that are merely
conclusory, unwarranted deductions of fact, or unreasonable inferences.” Khoja v.
Orexigen Therapeutics, Inc., 899 F.3d 988, 1008 (9th Cir. 2018) (internal citation omitted).
III. 	DISCUSSION
NewsBreak seeks to dismiss all claims against it by arguing that Comeback fails to
state claims for copyright and trademark infringement and that Comeback’s state law
claims are preempted. The Court addresses each argument in turn.
A. 	Contributory Copyright Infringement
NewsBreak argues Comeback fails to adequately allege the elements of a
contributory copyright infringement claim. The Court agrees.
To state a claim for contributory copyright infringement, a plaintiff must allege: (1)
a defendant’s knowledge of another’s infringement and (2) that they either (a) materially
contributed to or (b) induced the infringement. Perfect 10, Inc. v. Giganews, Inc., 847
F.3d 657, 670 (9th Cir. 2017). The parties differ on the requisite threshold for knowledge.
NewsBreak contends that actual knowledge is required. Mot. at 5. Comeback argues that
a “had reason to know” constructive standard is also permissible. Opp’n at 3. Comeback
is correct. While the Ninth Circuit has not always been clear2, it has “interpreted the
knowledge requirement for contributory copyright infringement to include both those with
actual knowledge and those who have reason to know of direct infringement.” Ellison v.
Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (emphasis in original). But NewsBreak is
also right that Comeback must allege “knowledge of specific infringers or instances of
infringement.” Y.Y.G.M. SA v. Redbubble, Inc., 75 F.4th 995, 1001 (9th Cir. 2023)
(emphasis added), cert. denied, 144 S. Ct. 824, 218 L. Ed. 2d 32 (2024); Reply (dkt. 31)
2 After Ellison, the Ninth Circuit has, at times, stated that “actual knowledge” is required for
contributory infringement liability. See, e.g., Luvdarts, LLC v. AT & T Mobility, LLC, 710 F.3d
1068, 1072 (9th Cir. 2013). But Ellison remains good law and other courts in this District have
agreed that it still applies for contributory infringement. See, e.g., YZ Prods., Inc. v. Redbubble,
Inc., 545 F. Supp. 3d 756, 763 (N.D. Cal. 2021) (citing Ellison favorably).
Case 3:25-cv-03298-CRB Document 33 Filed 10/30/25 Page 4 of 10

5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
at 3.
Comeback does not allege NewsBreak had actual knowledge of the infringement.
Indeed, Comeback alleges NewsBreak later suspended Total Impulse’s account due to its
misconduct. SAC ¶ 26. Comeback did not send a notice to NewsBreak, either.
Accordingly, Comeback can only satisfy the knowledge element if it sufficiently alleges
NewsBreak had reason to know of Total Impulse’s infringement. And it has failed to do
so.
Viewed in the most favorable light, Comeback’s strongest allegations for
constructive knowledge involve Total Impulse’s blatant infringement (verbatim content,
same images, same authors, etc.). Opp’n at 4–5 (“red flags that made infringement
‘obvious’ to NewsBreak”). But the Ninth Circuit has recognized that “contributory
liability [does] not automatically follow where [a] ‘system allows for the exchange of
copyrighted material.’” Luvdarts, 710 F.3d at 1072 (quoting A&M Records, Inc. v.
Napster, Inc., 239 F.3d 1004, 1021 (9th Cir. 2001)). Accordingly, 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. The Court concludes Comeback fails
to adequately allege that NewsBreak had the requisite specific knowledge of infringement.
Similarly, Comeback fails 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.” Perfect 10, 847 F.3d at 671 (emphasis in original).
Comeback does make a strong showing regarding NewsBreak’s systemic measures for
copyrighted work. For example, Comeback alleges NewsBreak gave Total Impulse
“Verified Publisher” status before it even had a website or content. SAC ¶ 22. But
Comeback defeats its own claim. By alleging NewsBreak suspended Total Impulse’s
account upon discovery of its misconduct, Comeback fails to show that NewsBreak
continued to provide access to the infringing works. Likewise, Comeback’s inducement
Case 3:25-cv-03298-CRB Document 33 Filed 10/30/25 Page 5 of 10

6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
theory fails 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. Perfect 10, 847 F.3d at 672.
Because Comeback fails to sufficiently plead both the knowledge and material
contribution/inducement elements of a contributory copyright infringement claim, the
Court grants NewsBreak’s motion as to the claim.
B. 	Vicarious Copyright Infringement
NewsBreak contends that Comeback fails to state the elements of a vicarious
copyright infringement claim. Mot. 8–10. The Court disagrees.
“[O]n a claim for vicarious infringement, a plaintiff must prove the defendant has
(1) the right and ability to supervise the infringing conduct and (2) a direct financial
interest in the infringing activity.” Perfect 10, 847 F.3d at 673 (internal quotation marks
omitted). A financial benefit “exists where the availability of infringing material acts as a
‘draw’ for customers.” Ellison, 357 F.3d at 1078 (internal quotation marks omitted). The
size of the “draw” is immaterial as only a “causal link” between the infringing activity and
the benefit is needed. Perfect 10, 847 F.3d at 673.
NewsBreak argues Comeback’s allegations regarding NewsBreak’s verified
publisher process and content moderation are conclusory. Mot. at 9–10. NewsBreak
points 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 doesn’t
infringe on intellectual property rights. Id. at 10; RJN (dkt. 29) Exs. A–C.3 But while that
is true, 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.” See, e.g., RJN Ex. B (emphasis added). That is
3 With respect to the webpages of NewsBreak’s Terms of Service, the Court takes judicial notice
of their existence because they are publicly available from a source whose accuracy cannot
reasonably be questioned and whose contents can be accurately determined. See In re Meta Pixel
Tax Filing Cases, 724 F. Supp. 3d 987, 1001 (N.D. Cal. 2024) (holding that publicly available
websites are proper subjects of judicial notice).
Case 3:25-cv-03298-CRB Document 33 Filed 10/30/25 Page 6 of 10

7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
the very definition of the right and ability to supervise content. Moreover, Comeback’s
allegations regarding content moderation are not conclusory. Comeback shows
moderation in practice by alleging NewsBreak suspended Total Impulse’s account due to
misconduct. SAC ¶ 26. Accordingly, Comeback has made a sufficient showing on the
right to control content prong.
Comeback also adequately alleges NewsBreak had a direct financial benefit from
Total Impulse’s infringement. NewsBreak contends there is no allegation it received a
“commission for the ten infringing articles or those articles drew engagement translating
directly into profits.” Mot. at 8–9. While NewsBreak is correct that Comeback does not
explicitly address revenue from the ten articles, Comeback raises the plausible inference
that NewsBreak derived financial benefit from Total Impulse’s infringement. Comeback
alleges NewsBreak would get traffic and ad revenue from articles published on its
platform. See SAC ¶¶ 2, 17. And Comeback explained how Total Impulse had copied its
articles, which led to a collapse of traffic to Next Impulse’s articles. “[W]here, as here, the
financial benefit is alleged to come directly from specific acts of infringement . . . there is a
clear causal link between the infringement and the financial benefit.” Robinson v. Binello,
771 F. Supp. 3d 1114, 1126 (N.D. Cal. 2025).
Because Comeback brings sufficient allegations to support a claim for vicarious
copyright infringement, the Court denies NewsBreak’s motion as to this claim.
C. 	Trademark Infringement
NewsBreak argues Comeback has failed to state a claim for direct trademark
infringement against it.4 Mot. at 10–11. The Court agrees.
“To prevail on a claim of trademark infringement under the Lanham Act,
15 U.S.C. § 1114, a party must prove: (1) that it has a protectible ownership interest in the
mark; and (2) that the defendant’s use of the mark is likely to cause consumer confusion.”
4 Comeback’s complaint does not clearly specify which kind of trademark infringement liability
Comeback seeks to impose on NewsBreak. In its opposition, Comeback states that “NewsBreak
directly used Comeback’s ‘Next Impulse Sports’ mark.” Opp’n at 8. Consequently, the Court
interprets Comeback’s claim as one for direct trademark infringement.
Case 3:25-cv-03298-CRB Document 33 Filed 10/30/25 Page 7 of 10

8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1144 (9th Cir.
2011) (quotation marks omitted). “However, the alleged infringer must directly use the
trademarks; a party that merely facilitates or assists others’ use cannot be liable for direct
infringement.” Atari Interactive, Inc. v. Redbubble, Inc., 515 F. Supp. 3d 1089, 1101
(N.D. Cal. 2021) (“Other service providers that aid the infringer may avoid liability
altogether.”), aff’d in part, appeal dismissed in part, No. 21-17062, 2023 WL 4704891 (9th
Cir. July 24, 2023).
NewsBreak only challenges the second element—arguing that Comeback has failed
to “allege that NewsBreak directly used the allegedly infringing mark.” Mot. at 10.
Comeback asserts that NewsBreak “directly used” Next Impulse’s mark by “hosting and
displaying” Total Impulse’s mark on their stolen articles via the NewsBreak platform.
Opp’n at 8. But this theory is “unsuccessful because the ‘use’ in question is being carried
out by [Total Impulse],” not NewsBreak. Rigsby v. GoDaddy Inc., 59 F.4th 998, 1004
(9th Cir. 2023). “A claim aimed at [a] third party cannot be repackaged to assert use by”
NewsBreak. Id. Comeback’s argument that NewsBreak’s search service sending users to
Total Impulse constitutes direct use also falls short. Opp’n at 8. It, too, points to Total
Impulse directly using the mark. Comeback’s conduct would, at most, merely facilitate
Total Impulse’s use. Cf. Perfect 10, Inc. v. Giganews, Inc., 2013 WL 2109963, at *14
(C.D. Cal. Mar. 8, 2013) (“Defendants do not ‘use’ Plaintiff's marks in a commercial
transaction by merely offering a search function that allows third parties to search for
images using Plaintiff’s marks as search terms.”), aff’d, 847 F.3d 657 (9th Cir. 2017).
Accordingly, the Court dismisses Comeback’s direct trademark infringement claim
against NewsBreak.
D. 	Preemption
NewsBreak asserts that both of Comeback’s state law claims—unfair competition
and misappropriation—are preempted by the Copyright Act. Mot. at 13–15. The Court
agrees.
The Copyright Act expressly preempts related state law claims based on “any of the
Case 3:25-cv-03298-CRB Document 33 Filed 10/30/25 Page 8 of 10

9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
exclusive rights within the general scope of copyright.” 17 U.S.C. § 301(a). A state law
claim is preempted if (1) “the rights that a plaintiff asserts under state law [are] ‘rights that
are equivalent’ to those protected by the Copyright Act” and (2) “the work involved [falls]
within the ‘subject matter’ of the Copyright Act.” Kodadek v. MTV Networks, Inc., 152
F.3d 1209, 1212 (9th Cir. 1998). For the equivalent rights element, a claim only survives
if it “protects rights which are qualitatively different from the copyright rights” and has “an
extra element which changes the nature of the action.” Laws v. Sony Music Ent., Inc., 448
F.3d 1134, 1143 (9th Cir. 2006). As the parties do not dispute the subject matter element
of preemption, Comeback’s state law claims escape preemption if they satisfy the
equivalent rights element.
Comeback seeks to distinguish its unfair competition claim by framing it as
challenging NewsBreak’s “lax verification and refusal to restore referrals.” Opp’n at 8.
But a review of Comeback’s complaint makes clear that it is really basing the claim on
copyright. Comeback specifically alleges the “lax and inadequate verification process,”
which allows “bad actors to easily obtain verified status and monetize stolen content,
constitutes an unfair business practice.” SAC ¶ 169 (emphasis added). Because the
allegations Comeback relies on “involve the encouragement or inducement of copyright
infringement,” the Copyright Act preempts Comeback’s unfair competition claim. See
Ryan v. Editions Ltd. W., Inc., 417 F. App’x 699, 701 (9th Cir. 2011).
Comeback’s misappropriation claim fares no better. Comeback styles it as being
about the “wrongful taking of Comeback’s business value.” Opp’n at 8. But the
complaint exposes the true nature of the claim. Comeback alleges 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. SAC ¶¶ 177–179. Such a claim is “not qualitatively
different from the rights protected under copyright law”—it is copyright law. Laws, 448
F.3d at 1144.
Because the underlying nature of Comeback’s state law claims is part and parcel of
Case 3:25-cv-03298-CRB Document 33 Filed 10/30/25 Page 9 of 10

10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
a copyright claim, the Court dismisses them.
IV. 	CONCLUSION
For the foregoing reasons, the Court GRANTS NewsBreak’s motion in part and
DENIES in part. As this is Comeback’s first chance to address a motion to dismiss,
Comeback is granted leave to amend.
IT IS SO ORDERED.
Dated: October 30, 2025
CHARLES R. BREYER
United States District Judge
Case 3:25-cv-03298-CRB Document 33 Filed 10/30/25 Page 10 of 10