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8/9/2019 Daniel Miller v. Facebook
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FIRST AMENDED COMPLAINT
C-10-264 (WHA)
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D. GILL SPERLEIN (172887)THE LAW OFFICE OF D. GILL SPERLEIN
584 Castro Street, Suite 879
San Francisco, California 94114Telephone: (415) 404-6615
Facsimile: (415) [email protected]
DOUGLAS L. BRIDGES (pro hac vice)
HENINGER GARRISON DAVIS LLC
1 Glenlake Parkway, Suite 700Atlanta, Georgia 30328
Telephone: (678) 638-6309
Facsimile: (678) [email protected]
BRIAN D. HANCOCK(pro hac vice)HENINGER GARRISON DAVIS LLC
2224 1st Avenue North
Birmingham, AL 35203
Telephone: (205) 326-3336Facsimile: (205) 326-3332
Attorneys for Plaintiff,
DANIEL M. MILLER
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
DANIEL M. MILLER,
Plaintiff,
vs.FACEBOOK, INC. and YAO WEI YEO,
Defendants.
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CASE NO.: CV-10-264 (WHA)
FIRST AMENDED COMPLAINT
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FIRST AMENDED COMPLAINT
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FIRST AMENDED COMPLAINT
Plaintiff Daniel M. Miller (Plaintiff), for its First Amended Complaint
against Defendants Facebook, Inc. (Facebook) and Yao Wei Yeo (Yeo,
collectively with Facebook as Defendants), hereby demands a jury trial and
alleges as follows:
THE PARTIES
1. Plaintiff Daniel M. Miller, is an individual residing 2079 Kinsmon
Drive, Marietta, Georgia 30062.
2. On information and belief, Defendant Facebook, Inc. is a corporation
organized and existing under the laws of Delaware with its principal place of
business at 1601 S. California Avenue, Palo Alto, CA 94304.
3. Upon information and belief, Defendant Yao is an individual with
unknown address that was not ascertainable after reasonable diligence.
JURISDICTION AND VENUE
4. This action arises under the Laws of the United States, 17 U.S.C. 1 et
seq., including 17 U.S.. 501 and 15 U.S.C. 1 et seq. including 15 U.S.C.
1125(a).
5. This Court has jurisdiction over this action pursuant to 28 U.S.C.
1331, 1332(a)(1), 1367 and 1338(a).
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FIRST AMENDED COMPLAINT
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6. Venue is proper in this judicial district pursuant to 28 U.S.C. 1400(b)
and 28 U.S.C. 1391(b) and (c).
7. On information and belief, Defendant Facebook is subject to personal
jurisdiction in this district by virtue of, among other things, doing business and
committing acts of infringement in this State, including in this judicial district,
through agents and representatives and/or otherwise having substantial contacts with
this State and this judicial district.
8. On information and belief Defendant Yeo is subject to personal
jurisdiction in this district by virtue of, among other things, committing acts of
infringement in this State, including in this judicial district.
FACTUAL BACKGROUND
9. In early 2007, Plaintiff authored the video gameBoomshine.
10. Boomshine is a game played on the Internet using Adobe Flash
technology where players click on a floating circle that causes the clicked circle to
expand and causes other contacted floating circles to likewise expand in a chain
reaction.
11. Boomshine was published by Plaintiff on the Internet on the website
K2xl.com starting on March 9, 2007.
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12. Plaintiff was duly and lawfully granted a copyright registration on
Boomshine by the United States Copyright Office with registration number
TX0007089855.
13. Defendant Yeo does business as Zwigglers Apps on the websites
www.facebook.com/zwigglers and www.zwigglers.com.
14. At least as early as April, 2009, Defendant Yeo published the game
ChainRxn on a website hosted by Defendant Facebook.
15. Defendant Facebook published ChainRxn in their Application
Directory which allows every Facebook user to search and view the application
from within the directory.
16. Defendant Facebook took the affirmative step to approve ChainRxn for
publication on its Application Directory.
17. ChainRxn is a game played on the Internet using Adobe Flash
technology where players click on a floating circle that causes the clicked circle to
expand and causes other contacted floating circles to likewise expand in a chain
reaction.
18. ChainRxn copies the look and feel ofBoomshine by incorporating
almost every visual element of the game.
19. After Defendant Yeo published ChainRxn on Defendant Facebooks
website, members of the public were deceived regarding the origin ofChainRxn.
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20. Defendant Facebook provides advertisements on the webpage that
hosts the ChainRxn game.
21. On May 7, 2009, Plaintiff sent a letter to Defendant Facebook (attached
hereto as Exhibit A) demanding that Facebook remove ChainRxn from its website
because it violates Plaintiffs copyrightedBoomshine.
22. On May 7, 2009, Plaintiff sent a letter to Defendant Yeo (attached
hereto as Exhibit B) demanding that Defendant Yeo remove ChainRxn from the
Facebook website because ChainRxn violates Plaintiffs copyrightedBoomshine.
23. Upon information and belief, after Defendant Yeo received the letter
from Plaintiff demanding that he remove ChainRxn from the Facebook website,
Defendant Yeo modified ChainRxn to prevent Plaintiff or anyone listing Plaintiff as
his friend on the Facebook website from accessing or viewing ChainRxn.
24. Despite the demands by Plaintiff that Defendants remove ChainRxn
from the Facebook website, they have refused to do so.
COUNT ONE
Copyright Infringement of the by Defendants
25. Plaintiff repeats and incorporate here in the entirety of the allegations
contained in paragraphs 1 though 24 above.
26. Without authorization, Defendant Facebook reproduced and distributed
the program ChainRxn, which infringes the copyright of the following Plaintiff
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owned and copyrighted work by copying its look and feel: Boomshine, U.S.
Copyright Registration.
27. Without authorization, Defendant Facebook induced and encouraged
the infringement of the Boomshine work by refusing to remove ChainRxn from
Facebook after being notified of its infringement of the copyright inBoomshine.
28. Without authorization, Defendant Yeo reproduced and distributed the
program ChainRxn, which infringes the copyright of the following Plaintiff owned
and copyrighted work by copying its look and feel: Boomshine, U.S. Copyright
Registration TX0007089855.
29. Plaintiff did not authorize Defendants copying, display or distribution
of infringing copies of his work.
30. Defendants knew that ChainRxn infringed Plaintiffs Boomshine
copyright and that they did not have permission to exploit Plaintiffs works.
31. Defendants knew that their acts constituted copyright infringement.
32. Defendants conduct was willful within the meaning of the Copyright
Act.
33. As a result of their wrongful conduct, Defendants are liable to Plaintiff
for copyright infringement pursuant to 17 U.S.C. 501. Plaintiff has suffered, and
will continue to suffer, substantial losses, including but not limited to damage to his
business reputation and goodwill.
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34. Plaintiff is entitled to recover damages, which include his losses and
any and all profits Defendants have made as a result of their wrongful conduct.
WHEREFORE, Plaintiff prays for a judgment against Defendants on all
counts as follows:
A.That this Court enter permanent injunctive relief enjoining and
retraining Defendant Facebook, its officers, directors, employees,
agents, licensees, servants, successors, and assigns, and any and all
persons in active concert or participation with any of them, from the
manufacture, publication, display, distribution, advertising of, sale, or
offer for sale ofChainRxn and any other work which infringes
Plaintiffs copyrights inBoomshine;
B.That this Court enter permanent injunctive relief enjoining and
retraining Defendant Yeo, his agents, licensees, servants, successors,
and assigns, and any and all persons in active concert or participation
with any of them, from the manufacture, publication, display,
distribution, advertising of, sale, or offer for sale ofChainRxn and any
other work which infringes Plaintiffs copyrights inBoomshine;
C.That this Court enter an order adjudging that Defendants have willful
infringed upon Plaintiffs copyrights in and toBoomshine;
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D.That this Court require Defendants to disgorge and to account to
Plaintiff for any and all profits derived by Defendants from the
manufacture, production, publication, distribution, advertisement, sale,
transfer or other exploitation of the game ChainRxn;
E.That this Court award Plaintiff damages against Defendants in an
amount to be determined at Trial;
F. That this Court grants such other and further relief as it shall deem just
and proper, including interest and the costs and disbursements of this
action.
PLAINTIFF DEMANDS A TRIAL BY JURY.
Dated:March 17, 2010
Respectfully submitted,
/s/D. Gill Sperlein
D.GILL SPERLEINTHE LAW OFFICE OF D.GILL SPERLEIN
584 Castro Street, Suite 879
San Francisco, CA 94114Telephone: (415) 404-6615
Facsimile: (415) 404-6616
E-mail: [email protected]
DOUGLAS L.BRIDGES (pro hac vice)HENINGER GARRISON DAVIS LLC
1 Glenlake Parkway, Suite 700Atlanta, Georgia 30328
Telephone: 678-638-6309
Facsimile: 678-638-6142Email: [email protected]
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BRIAN D.HANCOCK (pro hac vice)HENINGER GARRISON DAVIS LLC
2224 1st Avenue North
Birmingham, Alabama, 35203Telephone: (205) 326-3336
Facsimile: (205) 326-3332
ATTORNEYS FOR PLAINTIFF
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