In its order dismissing the FAC, the Court dismissed with prejudice all claims against the Regents and claims seeking damages against individual defendants in their official capacity on the grounds that these individual defendants are immune from suit under the doctrine of sovereign immunity... Plaintiffs have verbatim re-pleaded those claimsfrom the FAC for purposes of appeal.... As these claims have already been dismissed with prejudice, the Court does not analyze them further.

Under the Copyright Act, distributed items must be “material objects” in which a copy is “fixed.” 17 U.S.C. § 101. Plaintiffs’ new allegations that “the Video Furnace system administrator retains an original copy of the AVP DVD while distributing copies to end users, which copies remain on the end user’s computer as long as the Video Furnace InStream player remains open” does not change this outcome. For a copy to be fixed, it must be “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration.” 17 U.S.C. § 101. The “copy” on the end users computer, as alleged, is not fixed.

This Court finds that Plaintiffs have failed to cure the defects with their DMCA claim. First, the allegations in the SAC do not support a claim that Defendants violated 17 U.S.C. § 1201(a)(1)(A) by using the HVS Video Furnace software to “circumvent . . . a technological measure that effectively controls access to” the DVDs because UCLA had lawful access to the DVDs and Plaintiffs essentially allege improper usage of the DVDs.