Petition for Writ of Certiorari — Elliot McGucken, Petitioner v. Valnet, Inc., a Canadian Corporation, dba TheTravel.com

Supreme Court briefMar 28, 2025

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No. _______

IN THE

Supreme Court of the United States

ELLIOT MCGUCKEN,

Petitioner,

VALNET, INC.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

SCOTT ALAN BURROUGHS

STEPHEN M. DONIGER

ANDRES NAVARRO

DONIGER / BURROUGHS

247 Water Street

New York, NY 10038

J. WESLEY EARNHARDT

Counsel of Record

MING-TOY A. TAYLOR

NICHOLAS SHEPARD

CRAVATH, SWAINE & MOORE LLP

Two Manhattan West

375 Ninth Avenue

New York, NY 10001

Tel.: (212) 474-1000

wearnhardt@cravath.com

Counsel for Petitioner

March 28, 2025

QUESTION PRESENTED

Section 106(5) of the Copyright Act states that

the copyright owner of a pictorial work has the

exclusive right to control how the work is publicly

displayed. 17 U.S.C. § 106(5). “Anyone who violates

any of the exclusive rights of the copyright owner in

Section 106 … is an infringer of the copyright”. 17

U.S.C. § 501(a) (cleaned up).

Contrary to those provisions, the Ninth Circuit

has granted website operators blanket immunity from

infringement of the display right in Section 106(5).

Specifically, in the Ninth Circuit, a website operator

who publicly displays the copyrighted pictorial work

of an author, without authorization, is not liable for

displays the work using the technological process of

“link embedding” rather than the technological

process of “image hosting”. Every court outside the

Ninth Circuit to consider the issue has rejected the

Ninth Circuit’s approach.

The Question Presented is:

Whether the exclusive right to publicly display a

copyrighted work, 17 U.S.C. § 106(5), is infringed

when a website operator publicly shows a copyrighted

work without authorization, regardless of the

technological process used to show the work.

PARTIES TO THE PROCEEDING

Petitioner Elliot McGucken was the plaintiffappellant below.

Respondent Valnet, Inc. was the defendantappellee below.

iii

RELATED PROCEEDINGS

United States District Court (C.D. Cal.):

McGucken v. Valnet, Inc., No. 2:23-cv-06753JLS-SSC (Jan. 24, 2024)

United States Court of Appeals (9th Cir.):

McGucken v. Valnet, Inc., No. 24-511 (Dec.

19, 2024)

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES........................................v

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

STATUTORY PROVISIONS INVOLVED .................1

STATEMENT ..............................................................3

Background ...................................................8

II.

Facts and procedural history .....................12

REASONS FOR GRANTING THE PETITION .......14

The Server Test Is Inconsistent with the

Text of the Copyright Act, Congress’s

Intent and This Court’s Decision in

Aereo. ...........................................................15

II.

The Question Presented Is

Exceptionally Important and Warrants

Review in This Case. ..................................22

CONCLUSION ..........................................................24

Appendix A, Court of Appeals Decision....................1a

Appendix B, District Court Decision ........................5a

Appendix C, Order Denying Rehearing .................11a

TABLE OF AUTHORITIES

Cases

Page(s)

American Broadcasting Cos. v. Aereo, Inc.,

573 U.S. 431 (2014) ........................... 6, 7, 12, 20-21

Bowery v. Sites,

2024 WL 3416038 (D. Utah July 15, 2024) ..... 5, 22

Corley v. United States, 556 U.S. 303 (2009) ........... 17

Eldred v. Ashcroft, 537 U.S. 186 (2003) ................... 23

Goldman v. Breitbart News Network, LLC, 302 F.

Supp. 3d 585 (S.D.N.Y. 2018) ................ 5, 7, 16, 18

21, 23

Goldstein v. California, 412 U.S. 546 (1973) .............. 8

Leader’s Inst. LLC v. Jackson,

2017 WL 5629514 (N.D. Tex. Nov. 22, 2017) .. 5, 22

McGucken v. Newsweek LLC, 2022 WL 836786

(S.D.N.Y. Mar. 21, 2022).................................. 5, 22

New York Times Co. v. Tasini,

533 U.S. 483 (2001) .............................................. 21

Nicklen v. Sinclair Broadcasting Grp. Inc.,

551 F. Supp. 3d 188 (S.D.N.Y. 2021)........... 5, 7, 16

18, 21, 23

Perfect 10, Inc. v. Amazon.com, Inc.,

508 F.3d 1146 (9th Cir. 2007) .......... 4, 6, 11, 14, 16

Page(s)

Petrella v. Metro-Goldwyn-Mayer, Inc.,

572 U.S. 663 (2014) ................................................ 9

Prepared Food Photos, Inc. v. Chicken Joes, LLC,

2024 WL 382529 (S.D.N.Y. Feb. 1, 2024)........ 5, 22

Sears, Roebuck & Co. v. Stiffel Co.,

376 U.S. 225 (1964) ................................................ 9

Sony Corp. Am. v. Universal City Studios, Inc., 464

U.S. 417 (1984) ..................................................... 23

TRW, Inc. v. Andrews, 534 U.S. 19 (2001) ............... 17

United States, ex rel. Polansky v. Exec. Health Res.,

Inc., 599 U.S. 419 (2023) ...................................... 17

Statutes

17 U.S.C. § 101 .......................... 2, 9, 10, 15, 16, 20, 21

17 U.S.C. § 102 .......................................................... 21

17 U.S.C. § 106 ............................. 1, 6, 9, 11, 15-17, 20

17 U.S.C. § 110(B) ..................................................... 18

17 U.S.C. § 501(a) ...................................................... 16

28 U.S.C. § 1254(1) ...................................................... 1

vii

Page(s)

Pub. L. No. 105-298, 112 Stat. 2827, 2830-34

(1998) .................................................................... 18

Other Authorities

H.R. Rep. No. 94-1476, 94th Cong,,

2nd Sess. (1976) ................................... 9, 10, 17, 19

Jane C. Ginsburg & Luke Ali Budiardjo, Embedding

Content or Interring Copyright: Does the Internet

Need the “Server Rule”?, 32 Colum. J. L. & Arts

417, 430 (2019) ..................................................... 16

R. Anthony Reese, The Public Display Right: The

Controversy Over RAM “Copies”, 2001 U. Ill. L.

Rev. 83, 95 (2001) ................................................. 10

H. Comm. on the Judiciary, 89th Cong., Report of the

the U.S. Copyright Law: 1965 Revision Bill

(Comm. Print 1965)........................................ 11, 19

S. Rep. No. 94-473, 94th Cong., 1st Sess. (1975)........ 9

Todd B. Tatelman, Cong. Rsch. Serv., RS21107,

Public performance exemptions for certain

establishments (2003) ........................................... 18

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Dr. Elliot McGucken, respectfully

petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the Ninth Circuit Court of Appeals

(App., infra, 1a-4a) is unreported and available at

2024 WL 5166624 (9th Cir. Dec. 19, 2024). The order

of the United States District Court for the Central

District of California (App., infra, 5a-10a) is

unreported and available at 2024 WL 350559 (C.D.

Cal. Jan. 24, 2024). The order of the Ninth Circuit

Court of Appeals denying the petition for rehearing en

banc (App., infra, 11a-12a) is unreported.

JURISDICTION

The judgment of the Ninth Circuit was entered

on December 19, 2024. The Ninth Circuit’s order

denying the petition for rehearing en banc was

entered on January 31, 2025. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 106 of Title 17 of the United States Code

provides:

Subject to sections 107 through 122, the owner of

to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or

phonorecords;

(2) to prepare derivative works based upon the

copyrighted work;

(3) to distribute copies or phonorecords of the

copyrighted work to the public by sale or other

transfer of ownership, or by rental, lease or

lending;

(4) in the case of literary, musical, dramatic, and

choreographic works, pantomimes, and

motion pictures and other audiovisual works,

to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and

choreographic works, pantomimes, and

pictorial, graphic, or sculptural works,

including the individual images of a motion

picture or other audiovisual work, to display

the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the

copyrighted work publicly by means of a

digital audio transmission.

Section 101 of Title 17 of the United States Code

provides in relevant part:

Except as otherwise provided in this title, as used

in this title, the following terms and their variant

forms mean the following:

To “display” a work means to show a copy of it,

either directly or by means of a film, slide,

television image, or any other device or process

or, in the case of a motion picture or other

audiovisual work, to show individual images

nonsequentially.

To perform or display a work “publicly” means—

(1) to perform or display it at a place open to the

public or at any place where a substantial

number of persons outside of a normal circle

of a family and its social acquaintances is

gathered; or

(2) to transmit or otherwise communicate a

performance or display of the work to a place

specified by clause (1) or to the public, by

means of any device or process, whether the

members of the public capable of receiving the

performance or display receive it in the same

place or in separate places and at the same

time or at different times.

STATEMENT

Petitioner Dr. Elliot McGucken, an acclaimed

photographer, brought a claim for copyright

infringement against Respondent. Dr. McGucken

alleged that Respondent publicly displayed on its

travel website numerous of Dr. McGucken’s

copyrighted photographs without his consent. The

district court accepted as true Dr. McGucken’s

allegations that he owned the copyrights to the

photographs at issue; that Respondent had no license

or other permission to use the photographs at issue;

and that Respondent nonetheless showed the

photographs to users of its for-profit travel website as

a means to promote its business. Despite accepting

those premises as true, the district court dismissed

Dr. McGucken’s complaint, holding that the Ninth

Circuit’s so-called “Server Test” foreclosed Dr.

McGucken’s claims as a matter of law.

The Ninth Circuit affirmed the dismissal and

denied a petition for rehearing en banc, further

cementing the Server Test as controlling law in the

Ninth Circuit. This appeal challenges the legal

viability of the Server Test.

Announced by the Ninth Circuit in Perfect 10, Inc.

v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007),

the Server Test immunizes certain infringers based on

how they display a copyrighted image on a website:

•

If a website publisher displays an image by “using

a computer to fill a computer screen with a copy of

the photographic image fixed in the computer’s

memory”, that is infringement. Perfect 10, 508

F.3d at 1160.

•

If, on the other hand, the same website publisher

shows exactly the same image to exactly the same

user by “embedding” a link to it—a technological

process by which the website’s backend HTML

code “gives the address of the image to the user’s

browser” and the browser “interacts with the

[third-party] computer that stores the” computer

code that represents the image—that is not

infringement. Id. at 1161.

•

According to the Ninth Circuit, because the

computer code of the image remains on a third

party’s server and is not fixed in the memory of the

website operator’s computer, the copyrighted

image somehow is not “displayed” to the user of the

operator’s website (even though that is where the

user sees the image), and there is no infringement

of the display right.

This case and its challenge to the Ninth Circuit’s

Server Test meet virtually every criteria for certiorari

review:

First, it presents a clear legal question that has

divided the federal courts. The Ninth Circuit invented

the Server Test in 2007. Since then, district courts in

the Second, Fifth and Tenth Circuits have rejected it.

See Bowery v. Sites, 2024 WL 3416038, at *9-10 (D.

Utah July 15, 2024) (concluding that the server test

is “unpersuasive” and that such conclusion is

“compelled by the text of the Copyright Act”);

Prepared Food Photos, Inc. v. Chicken Joes, LLC, 2024

WL 382529, at *1 (S.D.N.Y. Feb. 1, 2024) (rejecting

the server test); McGucken v. Newsweek LLC, 2022

WL 836786, at *5-6 (S.D.N.Y. Mar. 21, 2022) (refusing

defendant’s invitation to apply the server test and

noting “that [it] has not been widely adopted outside

of the Ninth Circuit”); Nicklen v. Sinclair

Broadcasting Grp. Inc., 551 F. Supp. 3d 188, 195

(S.D.N.Y. 2021) (same, and suggesting alternatively

that the server test only apply to search engines or a

website that requires its users to click the embedded

link before viewing the image); Goldman v. Breitbart

News Network, LLC, 302 F. Supp. 3d 585, 595-96

(S.D.N.Y. 2018) (same); Leader’s Inst. LLC v. Jackson,

2017 WL 5629514, at *10-11 (N.D. Tex. Nov. 22, 2017)

(refusing to apply the server test).

This case comes to the Court on a motion to

dismiss and presents a pure legal issue with no factual

disputes; for that reason, it is a pristine vehicle for the

Court to decide the scope of the Copyright Act’s

display right and how that right should be enforced on

the internet.

Second, the Server Test runs afoul of the

statutory text of the Copyright Act. The 1976 Act

confers both an exclusive right “to reproduce the

copyrighted work in copies”, § 106(1) and, separately,

an exclusive right “to display the copyrighted work

publicly”, § 106(5). In the Ninth Circuit alone, a

website cannot be liable for infringing the exclusive

right to publicly display an image without first

infringing the exclusive right to reproduce it (by

making a copy of the image and storing that copy on

its own server). Perfect 10, 508 F.3d at 1161. As a

result, the Server Test renders the substantive

display right—a right expressly adopted by Congress

as a right additional to and beyond the separate right

of reproduction—mere surplusage. Accordingly, this

Court should correct the Ninth Circuit’s fundamental

error of law, and give effect to both exclusive rights as

proscribed by Congress.

Third, the decisions below and in Perfect 10

conflict with this Court’s holding in American

Broadcasting Cos. v. Aereo, Inc., 573 U.S. 431 (2014).

There, this Court reaffirmed that the proper focus of

work sees or hears, not on the background

technological process that produces what is seen or

heard. In Aereo, the Court rejected arguments that an

alleged infringer (there, of the performance right)

could avoid liability on the basis that, although its

service was used to distribute a copyrighted work, it

was not “performing” the work publicly because, as a

technological matter, by contrast to a television

broadcaster, it only transmitted programs by a

complicated antenna system when prompted to do so

by an individual viewer. The Court declined to

immunize infringement on the basis of that technical

distinction, which it explained was “invisible to

subscriber and broadcaster alike” and by which Aereo

“perform[ed] the same work”; “show[ed] the same

images and ma[de] audible the same sounds.” Aereo,

573 U.S. at 448; see also Goldman, 302 F. Supp. 3d at

589-590 (citing Aereo and refusing to apply the Server

Test on these grounds); Nicklen, 551 F. Supp. 3d at

195 (same). Aereo itself was held to “perform” under

the Copyright Act, even though its only function was

to communicate a “work’s images and sounds” from a

third party’s performance “to the subscriber, by

means of a ‘device or process’”. Aereo, 573 U.S. at 445.

The Server Test cannot be squared with Aereo’s

holding. The Server Test rests entirely on the nature

of the background technological process used to show

the copyrighted images and, specifically, on the

technicality that an embedded link points the user’s

web browser to an author’s image housed elsewhere

(rather than to a file on the operator’s own computer

server).

But that is a distinction rejected as

immaterial in Aereo—just as Aereo itself “performed”

by showing users third-party broadcasts, website

operators themselves “display” by showing users

images hosted by third-party computers. As in Aereo,

a website user cannot tell, and the infringer gets the

same result, whether the image is housed on the

website or is being accessed by an embedded link.

There is no way to square the decisions below or in

Perfect 10 with the reasoning of the Court in Aereo.

Fourth, the issue is exceedingly important.

Respondent and its amici admit that millions of

websites would infringe millions of copyrighted works

but for the Server Test. Whether millions of website

operators should continue to receive a free pass to

infringe works they did not create is an enormously

important question for authors, operators, and users

alike. Below, 17 individuals and entities submitted

amicus briefs arguing for or against rehearing en

banc. An issue that is so hotly debated that affects so

many people and entities—and on which there is

disagreement in the courts below—should be decided

by this Court.

Fifth, absent this Court’s review, copyright law in

this country will remain fragmented, with authors

suing in the Ninth Circuit receiving less substantive

elsewhere. That is directly contrary to Congress’s

repeated direction that copyright law should be

uniform across the nation.

In short, this case is an obvious candidate for the

Court’s review and certiorari should be granted.

Background

This Court has “ma[d]e clear that the federal

policy expressed in Art. I, § 8, cl. 8, is to have ‘national

uniformity in patent and copyright laws’, a policy

bolstered by Acts of Congress[.]”

Goldstein v.

California, 412 U.S. 546, 573 (1973) (quoting Sears,

Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 231 n.7

(1964)). One of the primary, express aims of the

complex amalgamation of statutes and state laws

previously governing copyright law, in favor of

“national uniformity in copyright protection”

consistent with “basic constitutional aims”. S. Rep.

No. 94-473, 94th Cong., 1st Sess. 112-13 (1975); see

also Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S.

663, 670 (2014) (explaining that two of Congress’s

purposes in enacting federal copyright law have been:

“(1) to render [it] uniform and certain . . . ; and (2) to

prevent [] forum shopping”).

In promoting national uniformity of the copyright

laws, Congress set forth clear, exclusive rights for

each copyright holder:

reproduction, public

performance, public display, creation of derivative

works, and distribution. 17 U.S.C. § 106. Congress

specified that “[t]o ‘display’ a work means to show a

copy of it, either directly or by means of a film, slide,

television image, or any other device or process or,

in the case of a motion picture or other audiovisual

work, to show individual images nonsequentially.” 17

U.S.C. § 101 (emphasis added).

Conscious that Section 106(5) “represent[ed] the

first explicit statutory recognition in American

copyrighted work, or an image of it, to the public”,

H.R. Rep. No. 94-1476, 94th Cong., 2nd Sess. 63

(1976), Congress deliberately crafted a broad display

right. The display right was initially drafted as

“analogous to the traditional common-law right of

first publication in a literary work, or to the moral

right of divulgation in continental law, [where] that

right would cease as soon as a copy of the work was

transferred.” R. Anthony Reese, The Public Display

Right: The Copyright Act’s Neglected Solution to the

Controversy Over RAM “Copies”, 2001 U. Ill. L. Rev.

83, 95 (2001). But Congress ultimately rejected that

approach, extending the display right “not only [to]

the initial rendition or showing, but also any further

act by which that rendition or showing is transmitted

or communicated to the public.” H.R. Rep. No. 941476, at 63.

Congress further established that the display

right was not concerned with how a work is shown,

but whether a work is shown, intending to encompass

“[e]ach and every method by which the images . . .

comprising a . . . display are picked up and conveyed”.

Id. at 64. Thus, to “display” a work within the

meaning of the Act includes direct displays, as well as

those effectuated by any “device or process”, defined

to include those “now known or later developed”, 17

U.S.C. § 101.

Specified devices and processes then known

broadly included “the projection of an image on a

screen or other surface by any method, the

transmission of an image by electronic or other

means, and the showing of an image on a cathode ray

tube, or similar viewing apparatus connected with

any sort of information storage and retrieval system.”

H.R. Rep. No. 94-1476, at 64. Further, “the display of

a visual image of a copyrighted work would be an

infringement if the image were transmitted by any

method (by closed or open circuit television, for

example, or by a computer system) from one place to

members of the public located elsewhere.” Id. at 80.

Presciently, the Register of Copyrights testified

as follows during hearings preceding the passage of

the 1976 Act: “[I]nformation storage and retrieval

devices; when linked together by communications

satellites or other means, [] could eventually provide

libraries and individuals throughout the world with

access to a single copy of a work by transmission of

electronic images.… [W]e are now convinced that a

basic right of public exhibition should be expressly

recognized in the statute.”

H. Comm. on the

Judiciary, 89th Cong., Copyright Law Revision Part 6:

Supplementary Report of the Register of Copyrights on

the General Revision of the U.S. Copyright Law: 1965

Revision Bill, at 20 (Comm. Print 1965).

“[T]he definition [of the display right] is intended

to cover every transmission, retransmission, or other

communication of [the image]”, including “any other

transmitter who picks up his signals and passes them

on”. Id. at 25.

The decision in Perfect 10 ignores the text and

legislative history of the Copyright Act. There, the

Ninth Circuit distinguished between website

publishers that display an image by “fill[ing] a

computer screen with a copy of the photographic

image” stored on the website publisher’s own server,

and those that display it via embedded HTML

instructions that direct the user’s browser to a thirdparty location. 508 F.3d at 1160. It held that only the

former constitutes infringement because, as for the

latter, a defendant never “store[s] the photographic

images”. Id. But Section 106(5) codified a display

right, not a storage right. The Server Test adopted in

the Perfect 10 decision is incompatible with the

display merely because of the technological means

employed by the would-be infringer to display.

It is likewise irreconcilable with an express

holding of this Court. The Court made clear, in Aereo,

that copyright law is concerned with the experience of

the end-user who observes the copyrighted work, and

not with the background technological process that

produces such display. Aereo, 573 U.S. at 444 (“We do

not see how this single difference, invisible to

subscriber and broadcaster alike” transforms

infringing activity to innocent conduct). But excusing

infringement on the basis of a single, invisible

difference in the technology used to display an image

is precisely the requirement of the Server Test.

II. Facts and procedural history

1. Petitioner Dr. Elliot McGucken is an awardwining nature and landscape photographer.

Petitioner created, owns and registered the copyrights

for the 36 photographs at issue here. App. 2a, 6a.

Respondent Valnet, Inc. owns and operates a forprofit travel website, “www.thetravel.com”. Id.

2. On August 17, 2023, Petitioner filed suit

against Respondent in the United States District

Court for the Central District of California. App. 5a10a. Petitioner alleged that Respondent infringed his

copyrights by—without authorization—displaying

photographs taken from his Instagram account in

online articles advertising travel destinations. Id.

Petitioner sought injunctive relief, profits, damages,

fees and costs under the Copyright Act. Id.

The district court granted Respondent’s motion to

dismiss. Id. at 9a-10a. The district court concluded

that the Ninth Circuit’s “Server Test” foreclosed

Petitioner’s infringement claim as a matter of law

because, although Respondent showed Petitioner’s

copyrighted works on its website, those works were

“embedded” (shown to users via HTML instructions

directing a user’s browser to retrieve computer code of

the image from a third-party’s server), rather than

hosted (shown to users via HTML instructions

directing a user’s browser to retrieve computer code of

the image from Respondent’s own server). Id. at 7a9a. The district court rejected Petitioner’s arguments

urging departure from the Server Test, reasoning that

it was “not free to disregard binding precedent”. Id.

at 8a.

3. The court of appeals denied Petitioner’s motion

for an initial hearing en banc and summarily

affirmed.

Id. at 1a-4a.

Rejecting Petitioner’s

arguments that “the Server Test should be overruled

or substantially cabined”, id. at 3a, the court of

appeals reaffirmed its understanding that “based on

the plain language of the statute, a person displays a

photographic image by using a computer to fill a

computer screen with a copy of the photographic

image fixed in the computer’s memory”. Id. The court

reasoned that “[b]ecause [Respondent’s] website

contained only embedded references to [Petitioner’s]

Instagram posts, … under the Server Test

[Respondent] did not infringe [Petitioner’s] display

rights.” Id. at 4a. The court of appeals then denied

Petitioner’s petition for panel rehearing or rehearing

en banc. Id. at 11a-12a.

Nothing in the Copyright Act—or this Court’s

precedent—permits this result. Every other court to

opine on the Server Test has rejected it. In only the

Ninth Circuit, would-be infringers are immunized

because they do not “display” a work unless they also

make a copy of it. That atextual and easily-evadable

technicality is one that Respondents and their

supporting amici below have admitted facilitates

infringements by “millions of website operators”. Dkt.

31.1, Br. of Amicus Curiae Google, LLC 3. As

explained below, because the Server Test effectively

transmogrifies the display right into the limited right

of first publication that Congress expressly rejected, it

is inconsistent with the Copyright Act and prior

decision of this Court.

REASONS FOR GRANTING THE PETITION

This case is a straightforward candidate for

certiorari. It presents the important question of

whether the exclusive right to publicly display a

copyrighted work is infringed when a website employs

technical means to display a copyright image without

storing that image on its own servers. The Ninth

Circuit stands alone in holding that website images

are “displayed” within the meaning of the Copyright

Act only “by using a computer to fill a computer screen

with a copy of the photographic image fixed in the

computer’s memory”. Perfect 10, 508 F.3d at 1160.

That holding is contrary to the text and purpose of the

infringers, who have taken advantage of it in droves.

This case, which arises from a motion to dismiss based

on this sole legal issue, is a pristine vehicle to correct

the Ninth Circuit. The petition for a writ of certiorari

should be granted.

The Server Test Is Inconsistent with the

Text of the Copyright Act, Congress’s

Intent and This Court’s Decision in Aereo.

1. As multiple courts outside the Ninth Circuit

have recognized, the text of the Copyright Act,

Congress’s deliberations in passing the Act and this

Court’s Aereo decision show that the Server Test, and

the technical distinction on which it relies to

immunize infringement, is error.

2. In the 1976 Act, Congress conferred a bundle

of “exclusive rights” upon copyright owners, including

the exclusive right “to display the copyrighted work

publicly”. 17 U.S.C. § 106(5). Congress specified in

the Act’s Transmit Clause that to “display a work

‘publicly’ means … to transmit or otherwise

communicate a … display of the work … to the public,

by means of any device or process”. 17 U.S.C. § 101.

And Congress further defined a “device or process” as

“one now known or later developed”, to account

broadly for technological advancement. Id. That

definition leaves no room for the Ninth Circuit to

carve out embedding, which is a “device or process” to

show an image, from copyright liability.

The Server Test runs afoul of the text of the Act

in other ways too.

First, it improperly conflates the exclusive right

of reproduction and the exclusive right of display. The

Act confers, separately, both an exclusive right “to

reproduce the copyrighted work in copies”, § 106(1),

and an exclusive right “to display the copyrighted

work publicly”, § 106(5).

But, under the Server Test, a website can only

infringe the display right if it first makes a

reproduction of an image and stores it on its own

server. See Perfect 10, 508 F.3d at 1160-62. Yet there

is “no indication in the text or legislative history of

the Act that possessing a copy of an infringing image

is a prerequisite to displaying it.” Goldman, 302 F.

Supp. 3d at 595. Rather, the Act is clear: (i)

“[a]nyone who violates any of the exclusive rights of

the copyright owner as provided by section[] 106 … is

an infringer of the copyright”, 17 U.S.C. § 501(a)

(emphasis added); and (ii) to display a work is “to show

a copy of it”, 17 U.S.C. § 101, not “to make, store, and

then to show a copy of it”.

Courts and scholars have noted this incongruity.

See Goldman, 302 F. Supp. 3d at 595; see also Nicklen,

551 F. Supp. 3d at 195 (finding that the Server Test

incorrectly “makes the display right merely a subset

of the reproduction right”); Jane C. Ginsburg & Luke

Ali Budiardjo, Embedding Content or Interring

32 Colum. J. L. & Arts 417, 430 (2019) (explaining

that the Server Test “convert[s] the display right into

an atrophied appendage of the reproduction right”

and thereby “ignores Congress’s endeavor to ensure

that the full ‘bundle’ of exclusive rights will address

evolving modes of exploitation of works”).

The Ninth Circuit’s conception of display

collapses the display right into the reproduction right.

Under the Server Test, one cannot display (Section

106(5)) without first reproducing (Section 106(1)),

which makes the display right mere surplusage.

That, of course, violates the “cardinal principle of

statutory construction that a statute ought, upon the

whole, to be so construed that, if it can be prevented,

no clause, sentence, or word shall be superfluous, void,

or insignificant.” TRW, Inc. v. Andrews, 534 U.S. 19,

31 (2001) (internal quotation marks and citation

omitted); United States, ex rel. Polansky v. Exec.

Health Res., Inc., 599 U.S. 419, 432 (2023) (statutes

should be read consistent with “the interpretive

principle that every clause and word of a statute

should have meaning” (citation omitted)); Corley v.

United States, 556 U.S. 303, 314 (2009) (“A statute

should be construed so that effect is given to all its

provisions, so that no part will be inoperative”

(citation omitted)). Those principles of statutory

construction have special force where, as here, an

interpretation would eliminate an entire substantive

right expressly adopted by Congress.

Finally, the Server Test undermines Congress’s

deliberate extension of the display right “not only [to]

the initial rendition or showing, but also any further

act by which that rendition or showing is transmitted

or communicated to the public”. H.R. Rep. No. 941476, at 63.

Under the Server Test, once a

copyrighted image is posted anywhere on the internet

for the first time, would-be infringers are free to

display it without consent, so long as they use the

technical embedding process to display the work. The

display right provides no recourse in such instances.

But that changes the display right Congress codified

into the limited right of first publication that

Congress expressly rejected. Supra p. 8.

“[I]t cannot be that the Copyright Act grants

authors an exclusive right to display their work

publicly only if that public is not online.” Nicklen, 551

F. Supp. 3d at 196. Stated differently, it cannot be

that authors possess only a limited right of first

publication online, whereas authors who publish

elsewhere maintain control over how their works are

later displayed. Yet that is exactly the law in the

Ninth Circuit.

3. The Server Test is all the more inappropriate

because Congress has shown that it knows how to

create exceptions to infringement when that is its

intent. For example, Title II of the “Sonny Bono

businesses such as bars, cafes and restaurants from §

106(4)-(5) liability for playing radio and television

broadcast programs for their customers. Pub. L. No.

105-298, 112 Stat. 2827, 2830-34 (1998); see also 17

U.S.C. § 110(B); Todd B. Tatelman, Cong. Rsch. Serv.,

RS21107, Copyright Law’s “Small Business

Exception”: Public performance exemptions for certain

establishments (2003). To turn on the radio or

television does not, of course, make or store a copy of

the publicly performed or displayed content. Yet,

absent the express exception, the small businesses

would have been infringing. If infringement required

making or possessing a copy of a copyrighted work

before performing or displaying it publicly, as the

Server Test instructs, Congress would have had no

need to draft this exemption. Goldman, 302 F. Supp.

3d at 595. That it did adopt the exemption shows that

the Server Test is wrong.

4. The error of the Server Test is also clear from

the congressional record. Congress recognized that

“technical advances ha[d] generated new industries

and new methods for the reproduction and

dissemination of copyrighted works”. H.R. Rep. No.

94-1476, at 47. Congress therefore included a broad,

non-exhaustive list of then-known devices and

processes to “display” copyrighted works in the Act.

Conscious that still new advances would follow,

Congress did not intend that the Act would “freeze the

scope of copyrightable technology”. Id. at 51. Instead,

the Act’s ethos was that “the display of a visual image

of a copyrighted work would be an infringement if the

image were transmitted by any method (by closed or

open circuit television, for example, or by a computer

system) from one place to members of the public

located elsewhere.” Id. at 80 (emphasis added); see

also H. Comm. on the Judiciary, 89th Cong., supra p.

11, at 24-25 (“[T]he definition [of the display right] is

intended to cover every transmission, retransmission,

or other communication of [the image]”, including

“any other transmitter who picks up his signals and

passes them on.”). Contrary to this intent to situate

evolving technology, the Server Test carves out from

the display right displaying by embedding.

Today, with the advent and proliferation of social

media, the publication of copyrighted images online is

ubiquitous. It is the primary way many authors reach

their audiences and potential clients. Robbing those

authors of the ability to control how their works are

displayed, in the very medium in which they

themselves publish and reach clients, eviscerates the

value of the copyright protection that Congress

intended to create and protect.

5. This Court already has rejected the theoretical

underpinnings of the Server Test, having held that

the Copyright Act does not permit exceptions to

infringement based on technological distinctions in

how works are shown. Aereo, 573 U.S. 431 (2014).

In Aereo, the Court assessed a copyright holder’s

exclusive right to perform a copyrighted work

publicly, 17 U.S.C. § 106(4), defined—similarly to the

exclusive right to display a copyrighted work

publicly—as “to transmit … a performance … of the

work … to the public, by means of any device or

process”, 17 U.S.C. § 101. Aereo sold a service

allowing subscribers to watch broadcast television

over the internet. A user would visit Aereo’s website

and select a third party’s on-air broadcast, then

Aereo’s servers would select an antenna, tune it to the

selected on-air broadcast and transmit a copy of the

broadcast picked up by the antenna to the user on its

webpage. Aereo, 573 U.S. at 436-37. Aereo argued

that because it was simply an intermediary between

a third-party’s broadcast and the user, it was not itself

transmitting a performance within the meaning of the

Act, and, even if it was, it was not doing so publicly.

Id. at 438.

This Court rejected Aereo’s arguments. It held

that showing users the copyrighted works was a direct

“performance” by Aereo, even though Aereo’s service

merely “‘communicate[d]’ to the subscriber, by means

of a ‘device or process’ … images and sounds”

previously broadcast over the air by third parties. Id.

at 445. “[W]hether Aereo transmits from the same or

separate copies, it performs the same work; it shows

the same images and makes audible the same

sounds.” Id. at 448; see also Nicklen, 551 F. Supp. 3d

at 195 (citing this proposition in Aereo to reject the

Server Test). The technological distinctions Aereo

attempted to draw were “invisible to subscriber and

broadcaster alike” and “concern[ed] not the nature of

the service that Aereo provides so much as the

technological manner in which it provides the

service”. Id. at 444, 451; see also Goldman, 302 F.

Supp. 3d at 590, 594 (finding this reasoning in Aereo

“strongly support[s]” rejecting the Server Test).

So, too, here. Whether a webpage displays

photographs from the same or separate copies, it

displays the work; it shows the same images to the

same users via the same interface. Any technological

distinction is “invisible” to user and photographer

alike and concerns not the nature of the photograph

that the websites display, so much as the

technological manner in which they are displayed.

At bottom, Aereo reaffirmed the Court’s long-held

direction that copyrighted material is to be analyzed

“as presented to, and perceptible by, [a] user”. New

York Times Co. v. Tasini, 533 U.S. 483, 499 (2001)

(citing 17 U.S.C. §§ 101-102) (“In determining

whether the Articles have been reproduced and

distributed … we focus on the Articles as presented to,

and perceptible by, the user of the Databases”). Here,

the photographs are so seamlessly integrated into

Respondent’s webpage that a user cannot distinguish

between an embedded image and a stored image.

Both infringe the display right because the website is

where the images are shown. See 17 U.S.C. § 101.

II.

The Question Presented Is Exceptionally

Important and Warrants Review in This

Case.

1. The question presented is a recurring one of

substantial legal and practical importance. Petitioner

and Respondent are in agreement that the Server

Test currently permits website operators to show

copyrighted images without authorization across

millions of websites. The Server Test has failed to

account for the realities of the digital age, where the

internet is a primary medium for communication,

commerce and entertainment, and online content

sharing is ubiquitous. The Server Test has disrupted

the balance adopted by Congress in the Copyright Act,

and in so doing has undermined the value of copyright

holders’ works. The Server Test not only diminishes

the incentive for creators to share their works online,

but also creates legal uncertainty across conflicting

jurisdictions. Addressing this issue is essential to

ensuring robust protection for copyrighted works and

maintaining the integrity and consistency of copyright

law in an increasingly digital world.

2. Only the Ninth Circuit endorses the Server

Test. District courts in the Second, Fifth and Tenth

Circuits have directly and uniformly rejected it. See

Bowery, 2024 WL 3416038, at *9-10 (concluding that

the server test is “unpersuasive” and that such

conclusion is “compelled by the text of the Copyright

Act”); Prepared Food Photos, 2024 WL 382529, at *1

(rejecting the server test); Newsweek, 2022 WL

836786, at *5-6 (refusing defendant’s invitation to

apply the server test and noting “that [it] has not been

widely adopted outside of the Ninth Circuit”); Nicklen,

551 F. Supp. 3d at 195 (same, and suggesting

alternatively that the server test only apply to search

engines or a website that requires its users to click the

embedded link before viewing the image); Goldman,

302 F. Supp. 3d at 592-93 (same); Leader’s Inst. LLC,

2017 WL 5629514, at *10-11 (refusing to apply the

server test).

An author who must sue in the Ninth Circuit

should not enjoy less copyright protection than one

able to sue elsewhere.

3. Below, Respondent and its amici raised policy

arguments that they suggested have been endorsed by

the Ninth Circuit to justify the endurance of the

Server Test. Those policy arguments are wrong. But,

in all events, they are best made to Congress. The

Server Test is incompatible with the text and purpose

of the Copyright Act as currently drafted and as

explained by this Court in Aereo. “It is Congress that

has been assigned the task of defining the scope of the

limited monopoly that should be granted to authors …

in order to give the public appropriate access to their

work product.” Eldred v. Ashcroft, 537 U.S. 186, 205

(2003) (emphasis added) (citing Sony Corp. Am. v.

Universal City Studios, Inc., 464 U.S. 417, 429 (1984)).

Indeed, the number of amici below (17)—and the

fervor with which they have argued for and against

the Server Test—only reinforce that this case is a

prime candidate for certiorari to determine whether

the Ninth Circuit overstepped its bounds.

4. This case is an ideal vehicle for the Court to

decide the question presented.

The question

presented was the singular contested issue and wholly

dispositive on the motion to dismiss in the district

court, App. 7a, as well as the appeal therefrom in the

court of appeals, id. at 3a. The record below is

succinct, the alleged facts relevant only as context for

the lower courts’ decisions, and the case is otherwise

free of any encumbrances that might frustrate this

Court’s resolution of the question presented. The

Court should grant review.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully Submitted,

SCOTT ALAN BURROUGHS

STEPHEN M. DONIGER

ANDRES NAVARRO

DONIGER / BURROUGHS

247 Water Street

New York, NY 10038

March 28, 2025

J. WESLEY EARNHARDT

Counsel of Record

MING-TOY A. TAYLOR

NICHOLAS SHEPARD

CRAVATH, SWAINE &

MOORE LLP

Two Manhattan West

375 Ninth Avenue

New York, NY 10001

Tel.: (212) 474-1000

wearnhardt@cravath.com

Counsel for Petitioner

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — MEMORANDUM OF THE

UNITED STATES COURT OF APPEALS

FOR T HE NIN T H CIRCU I T, FILED

DECEMBER 19, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA,

FILED JANUARY 24, 2024 . . . . . . . . . . . . . . . . . . . 5a

APPENDIX C — ORDER OF THE UNITED

STAT ES COU RT OF A PPEA LS FOR

T H E N I N T H C I R C U I T, F I L ED

JANUARY 31, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . 11a

APPENDIX A —Appendix

MEMORANDUM

OF THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT, FILED DECEMBER 19, 2024

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 24-511

D.C. No. 2:23-cv-06753-JLS-SSC

ELLIOT MCGUCKEN, DR., AN INDIVIDUAL,

Plaintiff-Appellant,

VALNET, INC., A CANADIAN CORPORATION,

INDIVIDUALLY DOING BUSINESS AS

THETRAVEL.COM,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of California

Josephine L. Staton, District Judge, Presiding

Submitted November 6, 2024*

Pasadena, California

* The panel unanimously concludes this case is suitable for

decision without oral argument. See Fed. R. App. P. 34(a)(2).

Appendix A

Before: W. FLETCHER and CALLAHAN, Circuit

Judges, and MÁRQUEZ, District Judge.**

MEMORANDUM***

Appellant, Dr. Elliot McGucken, is a landscape

photographer. Appellee, Valnet, Inc., owns and operates

the website “www.thetravel.com.” McGucken alleges that

Valnet violated his copyrights in 36 photographs when

Valnet embedded McGucken’s Instagram posts on its site.

Because McGucken’s claims are foreclosed by controlling

precedent, we affirm the district court’s Rule 12(b)(6)

dismissal of McGucken’s complaint.

McGucken filed a complaint alleging (1) direct

vicarious copyright infringement. Citing this Court’s

“Server Test,” Valnet filed a Rule 12(b)(6) motion to

dismiss. Valnet argued that because the “Subject

Photographs, though appearing on Valnet’s website, were

not actually copied or hosted by Valnet,” McGucken’s direct

infringement claim failed as a matter of law. Valnet argued

further that because there were no plausible allegations

of direct infringement, McGucken’s contributory and

vicarious liability claims also failed. The district court

granted Valnet’s motion to dismiss.

** The Honorable Rosemary Márquez, United States District

Judge for the District of Arizona, sitting by designation.

*** This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

Appendix A

On appeal, McGucken argues that the district

court erred in its application of the Server Test. In the

alternative, McGucken argues that the Server Test should

be overruled or substantially cabined. Both arguments

fail.

The Copyright Act promises creators the exclusive

right “to display the copyrighted work publicly.” 17 U.S.C.

§ 106(5). To infringe the exclusive right to display, an

unauthorized party must “show a copy of [the work], either

directly or by means of a film, slide, television image, or

any other device or process.” 17 U.S.C. § 101.

In Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146

(9th Cir. 2007), we established what has become known as

the Server Test to determine when a website infringes a

2007). In that case, Perfect 10 sued Google and Amazon

for allegedly infringing copyrighted photographs. Id. at

1154. Google and Amazon had both embedded references

to photographs owned by Perfect 10 on their websites.

Id. at 1156, 1175. Perfect 10 insisted that these embedded

references directly violated its display and distribution

rights under the Copyright Act. Id. at 1159. We disagreed.

We wrote that “based on the plain language of the

statute, a person displays a photographic image by using

a computer to fill a computer screen with a copy of the

photographic image fixed in the computer’s memory.” Id.

at 1160. Therefore, embedded or “in-line linked images

that appear on a user’s computer screen” do not directly

infringe the display right. Id. We held that Perfect 10’s

Appendix A

display rights were not violated because Amazon and

Google did not host and transmit the images, but instead,

merely embedded them. Id. at 1162. Sixteen years later,

we affirmed the continued relevance of the Server Test in

Hunley v. Instagram, 73 F.4th 1060 (9th Cir. 2023).

Because Valnet’s website contained only embedded

references to McGucken’s Instagram posts, Valnet never

displayed or distributed copies of the works to anyone on

the internet. Thus, under the Server Test Valnet did not

infringe McGucken’s display rights.

McGucken suggests that the Server Test “should

be cabined to use in the search-engine context.” This

argument was considered and rejected in Hunley. As

we explained, “in articulating the Server Test, Perfect

10 did not rely on the unique context of a search engine”

but instead the method of embedding an image. Hunley,

73 F.4th at 1070.

Recognizing that our court overrules controlling

precedent only in en banc proceedings, McGucken has

moved for an initial hearing en banc. An initial hearing

en banc is justified only when (1) en banc consideration is

necessary to secure or maintain uniformity of the court’s

decisions, or (2) the proceeding involves a question of

exceptional importance. Fed. R. App. P. 35(a). McGucken

has failed to satisfy these criteria.

We AFFIRM the district court’s Rule 12(b)(6)

dismissal and DENY the appellant’s motion for an initial

hearing en banc. (Dkt. 9).

Appendix

B UNITED STATES

APPENDIX B — ORDER

OF THE

DISTRICT COURT FOR THE CENTRAL DISTRICT

OF CALIFORNIA, FILED JANUARY 24, 2024

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:23-cv-06753-JLS-SSC

Title: Elliot McGucken v. Valnet, Inc. et al.

Date: January 24, 2024

Present: Honorable JOSEPHINE L. STATON,

UNITED STATES DISTRICT JUDGE

Gabby Garcia N/A

Deputy Clerk

Court Reporter

Attorneys Present for Plaintiffs:

Not Present

Attorneys Present for Defendant:

Not Present

PROCEEDINGS: (IN CHAMBERS) ORDER

GRANTING DEFENDANTS MOTION TO DISMISS

(DOC. 15)

Before the Court is Defendant Valnet, Inc.’s Motion

to Dismiss. (Mot., Doc. 15.) Plaintiff Elliot McGucken

opposed, and Defendant responded. (Opp., Doc. 18; Reply,

Doc. 19.) The Court finds this matter appropriate for

Appendix B

decision without oral argument, and the hearing set for

January 19, 2024, at 10:30 a.m. is VACATED. Fed. R.

Civ. P. 78(b); C.D. Cal. R. 7-15. For the following reasons,

the Court GRANTS Defendant’s motion, DENIES leave

to amend, and DISMISSES McGucken’s action WITH

PREJUDICE.

BACKGROUND

Plaintiff McGucken is a nature and landscape

photographer. (Compl., Doc. 1 ¶ 4.) Defendant Valnet

operates a travel website. (Id. ¶ 5.) Valnet published

certain articles on its website over several years that

embedded some of McGucken’s Instagram posts and

related photographs. (See Website Screenshots, Doc.

1-1.) McGucken alleges that Valnet’s embedding of his

Instagram photos constitutes both direct and vicarious

the copyright owner. (Compl. ¶¶ 16–28.) Valnet moved to

dismiss, arguing that McGucken’s claims fail as a matter

of law under the “server test.” (Mot. at 6–12.)

II. LEGAL STANDARD

In deciding a motion to dismiss under Rule 12(b)(6)

of the Federal Rules of Civil Procedure, courts must

accept as true all “well-pleaded factual allegations” in

a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

Furthermore, courts must construe the facts in the light

most favorable to the non-moving party. See DanielsHall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir.

2010). Moreover, the Court may not dismiss a complaint

Appendix B

without leave to amend unless “it is absolutely clear that

the deficiencies of the complaint could not be cured by

amendment.” Karim-Panahi v. L.A. Police Dep’t, 839

F.2d 621, 623 (9th Cir. 1988) (cleaned up).

III. ANALYSIS

The Court DIMISSES McGucken’s action. The

“server test” forecloses McGucken’s direct-infringement

claim as a matter of law, and McGucken concedes that

his vicarious-infringement claim fails. (See Opp. at 2 n.2.)

Direct Infringement

A website that “embeds” a copyrighted image—i.e.,

includes “HTML instructions that direct a user’s browser”

to retrieve the image from a third-party’s server—

does not “show[] a copy” of the photo for purposes of

the Copyright Act and, therefore, does not infringe

the copyright owner’s display rights. Perfect 10, Inc. v.

Amazon.com, 508 F.3d 1146, 1160–61 (9th Cir. 2007); see

also Hunley v. Instagram, LLC, 73 F.4th 1060, 1065 (9th

Cir. 2023) (“Because [Defendants] embedded—but did not

store—the underlying copyrighted photographs, they are

not guilty of direct infringement.”).

Mc Gucken m a ke s t h r e e a r g u ment s for t he

inapplicability of the server test to this case; the Court

rejects each.

First, McGucken argues that the server test does

not extend beyond the search-engine context to reach

Appendix B

“a media company embedding images from Instagram.”

(Opp. at 5.) The Ninth Circuit has squarely rejected that

argument. In Hunley, the court concluded that “[n]othing

in Perfect 10 or the cases following it limits its application

to search engines.” Hunley, 73 F.4th at 1071. It then

applied the server test to reject the plaintiffs’ argument

that two media companies, Time and Buzzfeed, directly

infringed on their display rights by embedding their

Instagram photos. See id at 1077.

Second, McGucken argues that the server test

“contravenes the language and policy of the [Copyright

Act]” and has been “criticized and rejected outside the

Ninth Circuit.” (Opp. at 5–13.) The Court is not free to

disregard binding precedent simply because a litigant

or other courts disagree with it. See Hunley, 73 F.4th at

1072 (“We will not consider these arguments in any detail

because they are foreclosed by Perfect 10.”).

Third, McGucken argues that Perfect 10—which

announced the server test—is inconsistent with the

Supreme Court’s intervening decision in American

Broadcasting Companies, Inc. v. Aereo, Inc., 573 U.S.

431 (2014). (Opp. at 13–14.) The Ninth Circuit has already

rejected this argument and concluded that Perfect 10 is

not “clearly irreconcilable” with Aereo in a manner that

would allow a district court to disregard it. See Hunley,

73 F.4th at 1076 (quoting Miller v. Gammie, 335 F.3d 889,

893 (9th Cir. 2003) (en banc)).

Appendix B

B. Leave to Amend

The Court DENIES leave to amend. As an initial

matter, McGucken seems to disclaim any desire to amend

his complaint—stating that he “seeks instead to appeal the

granting of Valnet’s motion rather than amend.” (Opp. at 3

n.4.) Moreover, there are no amendments that McGucken

could make that would remove this action from the sweep

of the server test. Therefore, “it is absolutely clear that

the deficiencies of the complaint could not be cured by

amendment.” Karim-Panahi, 839 F.2d at 623.

Interlocutory Appeal

In his opposition, McGucken asks the Court to certify

this Order ruling on Valnet’s motion to dismiss for an

interlocutory appeal pursuant to 28 U.S.C. § 1292(b). (Opp.

at 18–21.) To begin, McGucken’s request is procedurally

improper. See 28 U.S.C. § 1292(b) (requiring an “application

. . . made . . . within ten days after the entry of the order”

seeking to be appealed). More fundamentally, McGucken’s

request is unnecessary since an order denying leave to

amend and dismissing an entire action is a final order

appealable pursuant to 28 U.S.C. § 1291. See, e.g., In re

Ford Motor Co./Citibank (S. Dakota), N.A., 264 F.3d 952,

957 (9th Cir. 2001).

IV. CONCLUSION

For the above reasons, the Court GRANTS Defendant’s

motion, DENIES leave to amend, and DISMISSES

10a

Appendix B

Plaintiff’s action WITH PREJUDICE. Additionally,

Plaintiff’s request to certify an interlocutory appeal is

DENIED.

Initials of Deputy Clerk: gga

11a

Appendix

C UNITED STATES

APPENDIX C — ORDER

OF THE

COURT OF APPEALS FOR THE NINTH CIRCUIT,

FILED JANUARY 31, 2025

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 24-511

D.C. No. 2:23-cv-06753-JLS-SSC

Central District of California, Los Angeles

ELLIOT MCGUCKEN, DR., AN INDIVIDUAL,

Plaintiff-Appellant,

VALNET, INC., A CANADIAN CORPORATION,

INDIVIDUALLY DOING BUSINESS AS

THETRAVEL.COM,

Defendant-Appellee.

ORDER

Before: W. FLETCHER and CALLAHAN, Circuit

Judges, and MÁRQUEZ, District Judge.*

Appellant filed a petition for panel rehearing or, in the

alternative, rehearing en banc on January 2, 2025 (Dkt.

* The Honorable Rosemary Márquez, United States District

Judge for the District of Arizona, sitting by designation.

12a

Appendix C

Entry No. 55). The panel has unanimously voted to deny

the petition for panel rehearing. Judge Callahan voted

to deny the petition for rehearing en banc, and Judges

Fletcher and Márquez so recommended.

The full court has been advised of the petition for

rehearing en banc and no judge of the court has requested

a vote on whether to rehear the matter en banc. Fed. R.

App. P. 40.

The petition for panel rehearing or rehearing en banc

is DENIED.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.