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# Macromedia, Inc., a developer of computer software products, has filed suit against individual America Online subscribers, alleging these subscribers (using 67 pseudonyms) infringed Macromedia copyrights by copying and distributing its works through use of America Online's e-mail system. America Online is not a named defendant. __Macromedia, Inc. v. VRHacker, et al.__, Case No. C95-1261 (N.D. Cal. filed 4/13/9)Copyright (c) 1995 Jonathan Rosenoer.
KATHRYN J. FRITZ (CSB #148200) DONALD J. WEST (CSB #148129) FENWICK & WEST Two Palo Alto Square, Suite 800 Palo Alto, California 94306 Telephone: (415) 494-0600
Attorneys for Plaintiff MACROMEDIA, INC.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
v.
Plaintiff, . FIRST AMENDED COMPLAINT FOR COPYRIGHT INFRINGEMENT
VRHacker, EliteHack, HAQATTAQ,Newtradz, WarezBoy, IMeltChese,) ILickChese, MarvyG, IkonOclast,) INeedChese, TheDeli, CaptScien,) WizdmTooth, BIGDADDY01, JHA, ) Beavis44, P is 4 Ass, Eric 85, ) LiTtLe CeO, WashMcBeav, MacNol,) LynnM85455, MacH94, FAN2525, ) EdwardS632, FU YING, QGDJM187, ) HELLenl313, SuperKat, Riskl8, ) DeathWishl, DeathWish7, MacH60,) Rahimpour, Josh69000, MacH3000,) MacinRsbac, SceeterlO, MacH90, ) CharlieFrk, CW EAGLE, SXE101, ) NeonNinjaY, NeonNinjaZ, Risc18,) NeonNingaX, WARTONFOOT, CYAUT, ) PhantAcc, MacWzrdO01, P3Pilot, ) MIN MAX, ByteCrwlr, DOS Eater, ) DCantor441, MacPC6100, DL JTM, ) BradF78007, CapScien, AcaciaP, ) CmdrSweets, HeliKloptr, RyeBrie) II, FrYgUy2600, Whoa there, ) XXXveganXX, and OhItsUBobl, and) DOES 1 through 100, inclusive, )
Plaintiff Macromedia, Inc. ("Macromedia") alleges for its
complaint against defendants as follows:
1. This is an action by Macromedia, a developer of computer software products, for copyright infringement arising out of the unauthorized copying and distribution of certain of Macromedia's copyrighted works by subscribers to the commercial electronic mail messaging system operated by America OnLine, Inc. ("AOL") through the use of AOL's electronic mail messaging system. corporation organized and existing under the laws of the State of Delaware, with its principal place of business in this District, in the City and County of San Francisco, State of California. Macromedia is informed and believes, and on that basis alleges, that:
a. Defendants xxxxxxxxxxx (a.k.a. VRHacker), xxxxxxxxxxx (a.k.a. EliteHack), xxxxxxxxxxx (a.k.a. JHA, WizdmTooth and IkonOclast), xxxxxxxxxxx (a.k.a. LiTtLeCeO), xxxxxxxxxxx (a.k.a. HELLenl313), xxxxxxxxxxx (a.k.a. Rahimpour), xxxxxxxxxxx (a.k.a. MacinRsbac), xxxxxxxxxxx (a.k.a. CW Eagle), xxxxxxxxxxx (a.k.a. MIN MAX), xxxxxxxxxxx (a.k.a. ByteCrwlr), xxxxxxxxxxx (a.k.a. AcaciaP), and xxxxxxxxxxx (a.k.a. CmdrSweets) are individuals residing in the State of California;
b. Defendants xxxxxxxxxxx (a.k.a. MacH90), xxxxxxxxxxx (a.k.a. MacH3000), xxxxxxxxxxx (a.k.a. MacH60), xxxxxxxxxxx (a.k.a. EdwardS632),xxxxxxxxxxx (a.k.a. MacH94), and xxxxxxxxxxx (a.k.a. in the State of Florida; 1ST AMENDED COMPLAINT
4. The defendants sued herein as Does 1 through 9 are believed to be individuals using the fictitious names Namitumbo, Hackmac7, The Tekkie, Da Phrawgl, MacWarez33, Narcz81, ResEditBoy, Mr Cooger, and LLamer. Defendants' true names are not known to plaintiff at this time, but plaintiff believes that each of the foregoing defendants is located in this District and/or is engaged in the business of copying and/ or distributing copies of plaintiff's computer software products in this District.
5. The true names and capacities, whether individual, or otherwise, of the defendants sued herein as OItsUBobl and Does 1 through 100, inclusive, are unknown to Macromedia at this time. Macromedia will ask leave to amend this Complaint to allege their true names and capacities when the same have been ascertained.
6. This action is a civil action arising, inter alia, under the Copyright Laws of the United States. Accordingly, this Court has Federal question jurisdiction over the subject matter of this action pursuant to 15 U.S.C. ¤ 1121, 17 U.S.C. ¤ 501, 28 U.S.C. ¤ 1331, and 28 U.S.C. ¤ 1338(a). 7. Venue in this District is proper under 18 U.S.C. ¤ 1391(b). 1ST AMENDED COMPLAINT BACKGROUND
8. Macromedia is in the business of developing, manufacturing, and distributing multi-media computer software products for use on personal computers. Those software products include:
a. SoundEdit 16, which allows a user to record, edit and save various sounds;
b. MacroModel 1.5, which allows a user to generate, manipulate and save three-dimensional images;
c. FreeHand 2.5, which allows a user to generate, manipulate and save two-dimensional images;
d. Fontographer 3.3, which allows a user to create, modify and save various type fonts; and
e. Director 3.0, which allows a user to integrate images, sounds and animation to create a unified, multi-media display;
9. Macromedia's software products are a valuable asset of Macromedia and constitute its primary source of earned revenue. Macromedia devotes substantial resources to development of its software products. On average, it takes Macromedia between twelve and eighteen months to develop and bring to market a multi-media software product.
10. Accordingly, Macromedia takes several precautions to prevent unauthorized copying of software products.
a. During development and testing and before release to the public, each software product is maintained as confidential by Macromedia.
b. The employees or contractors who work for Macromedia sign non-disclosure agreements regarding their work.
c. Macromedia licenses the use of its software products to end-users subject to a license agreement (the "License"), which includes the following restrictions:
4. Restrictions. You may not make or distribute copies of the Macromedia Product, or electronically transfer the Macromedia Software from one computer to another or over a network. You may not decompile, reverse engineer, disassemble, or otherwise reduce the Macromedia Software to a human-perceivable form. You may not modify, rent, resell for profit, distribute or create derivative works based upon the Macromedia Product Software or any part thereof. A true and correct copy of the License is attached as Exhibit A. d. Macromedia does not authorize the copying or distribution of its software products, except as permitted by the License. 11. Each of Macromedia's software products contains and/ or consists of copyrightable subject matter. Macromedia is the exclusive owner of the copyrights in those products, and has not assigned, sold, or otherwise transferred its rights to any other person or entity. 12. Macromedia has obtained a Certificate of Copyright Registration for MacroModel 1.5, Reg. Nos. TX3843838 and TX3776762. A true and correct copy of the Certificates of Registration for this software product are attached hereto collectively as Exhibit B. 13. Additionally, Macromedia has applied or soon will apply for copyright registration for Director 3.0, FreeHand 2.5, Fontographer 3.3, and SoundEdit 16. Macromedia will amend the Complaint to include the Registration for those software products when those registrations have been issued.
14. Macromedia's copyright notice is prominently displayed on each of Macromedia's software products, not only on the packaging, but on the opening screens of each software product as well.
15. Upon information and belief, AOL owns and operates a commercial electronic-mail messaging network (the "AOL E-Mail System") with thousands if not millions of subscribers. AOL also provides its e-mail subscribers with access to the Internet through AOL's Internet "gateway."
16. AOL subscribers can, through the AOL E-Mail System and Internet "gateway," send electronic mail messages to other AOL subscribers and Internet Users.
17. AOL subscribers can also "attach" copies of computer data files, including computer software, to the electronic mail messages that they send, thereby sending the "attached copy along with the electronic mail message.
18. Macromedia is informed and believes, and on that basis alleges, that at all times relevant herein, defendants, and each of them, were and are AOL subscribers.
19. Macromedia realleges and incorporates herein by reference each and every allegation set forth in Paragraphs 1 through 18 above.
20. Macromedia is informed and believes, and on that basis alleges, that the defendants, and each of them, have copied and distributed and are copying and distributing Macromedials software products, including but not limited to MacroModel 1.5, through the use of the AOL E-Mail System.
21. Defendants' copying and distribution of Macromedia's software products occurred without the knowledge, authorization, license, permission or consent of Macromedia.
22. Defendants have directly infringed and are directly infringing Macromedials copyrights in its software products by copying and distributing those software products without knowledge, authorization, license, permission or consent of Macromedia, in violation.
23. Macromedia is informed and believes that defendants, and each of them, profit from the unlawful copying and distribution of Macromedia's software products by, among other things, trading with each other copies of Macromedia's software products in exchange for copies of other software products.
24. Furthermore, defendants, and each of them, have contributorily infringed and are contributorily infringing Macromedia's copyrights in its software products, in violation of 17 U.S.C. ¤ 106(1)(3), by:
a. making available for copying by others Macromedia's software products; and
b. encouraging and inducing other AOL subscribers and Internet users to illegally copy Macromedia's software products and to distribute those copies to third parties.
25. Defendants, and each of them, threaten to continue the acts complained of herein, and will continue to engage in the acts complained of herein unless restrained and enjoined. Macromedia's remedy at law is not adequate to compensate it for the injuries threatened.
26. Further, defendants' acts of infringement are willful and deliberate, and are committed with knowledge of Macromedia's rights in its copyright works, and/or knowledge of the proprietary nature of such works, thereby entitling plaintiff to enhanced damages.
WHEREFORE, Macromedia, Inc. prays for judgment in its favor and against defendants, and each of them, as follows:
1. Preliminarily and permanently enjoining defendants, and those acting in concert with them, from infringing, inducing infringement or contributing to the infringement of Macromedia, Inc.'s copyrighted works;
2. Ordering defendants jointly and severally and all persons acting in concert with them to deliver up to Macromedia for destruction all copies of Macromedia's software products, or any portion thereof and all materials, apparatus, copiers, or devices used to copy, create or store such copies;
3. Ordering defendants jointly and severally and all persons acting in concert with them to supply to Macromedia a list of all persons or entities to whom defendants have transferred and from whom defendants have received any Macromedia software products;
4. Awarding Macromedia at its election either actual or statutory damages against defendants, jointly and severally together with Macromedia's attorneys' fees, on those claims asserted pursuant to 17 U.S.C. ¤¤ 504 and 505; and
5. Awarding Macromedia its allowable costs and such other and further relief as the Court may deem just and proper.
Dated: April 28 , 1995
FENWICK & WEST
By Donald J. West
Attorneys for Plaintiff Macromedia, INC.