Facebook, Inc. v. Power Ventures, Inc.

Filing 56

MOTION for Judgment on the Pleadings or, in the Alternative MOTION Partial Summary Judgment of Liability Under California Penal Code Section 502(c) filed by Facebook, Inc.(a Delaware corporation). Motion Hearing set for 2/26/2010 09:00 AM in Courtroom 3, 5th Floor, San Jose. (Attachments: # 1 Proposed Order)(Pers, Jessica) (Filed on 12/23/2009) Modified on 3/2/2010,(counsel failed to properly select multiple motions.) (cv, COURT STAFF). Modified on 3/12/2010 (cv, COURT STAFF).

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 I. NEEL CHATTERJEE (STATE BAR NO. 173985) nchatterjee@orrick.com THOMAS J. GRAY (STATE BAR NO. 191411) tgray@orrick.co m JULIO C. AVALOS (STATE BAR NO. 255350) javalo s@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: +1-650-614-7400 Facsimile: +1-650-614-7401 JESSICA S. PERS (STATE BAR NO. 77740) jpers@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP The Orrick Building 405 Howard Street San Francisco, CA 94105-2669 Telephone: +1-415-773-5700 Facsimile: +1-415-773-5759 Attorneys for Plaintiff FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION FACEBOOK, INC., Plaint iff, v. POWER VENTURES, INC. a Cayman Island Corporation; STEVE VACHANI, an individual; DOE 1, d/b/a POWER.COM, DOES 2-25, inclusive, Defendants. Case No. 5:08-cv-05780 JF (RS) NOTICE OF MOTION, MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES FOR JUDGMENT ON THE PLEADINGS PURSUANT TO FED. R. CIV. P. 12(C) OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT OF LIABILITY UNDER CALIFORNIA PENAL CODE 502(C) Date: Time: Judge: Courtroom: February 26, 2010 9:00 a.m. Hon. Jeremy D. Fogel 3 OHS West:260792905.6 FACEBOOK'S MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDMENT OF LIABILITY CASE NO. 5:08-C V-05780 JF 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 OHS West:260792905.6 NOTICE OF MOTION AND MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on February 26, 2010 at 9:00 am or as soon thereafter as the matter may be heard, in the courtroom of the Honorable Jeremy D. Fogel, United States District Court, 280 S. First Street, San Jose, CA 95113, Facebook, Inc. ("Facebook") will move the court for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) or, in the alternative, motion for summary judgment on Facebook's second cause of action for violation of California Penal Code Section 502(c) against Defendants Power Ventures, Inc. and Steven Vachani (collectively, "Power"). These motions are based on the Notice of Motion and Motion, the supporting Memorandum of Points and Authorities, all pleadings on file in this action, oral argument of counsel, and any other matter that may be submitted at the hearing -1- FACEBOOK'S MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDMENT OF LIABILITY CASE NO. 5:08-C V-05780 JF 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 OHS West:260792905.6 TABLE OF CONTENTS Page I. II. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF UNDISPUTED MATERIAL FACTS ................................................ 1 A. Access To and Use of Facebook Is Limited..........................................................1 B. Facebook allows interactions with other websites.................................................2 C. Power's Illegal Activities ..................................................................................... 3 1. Power Knowingly Accesses Facebook's Computer Servers Without Authorization ........................................................................................... 3 2. Power Circumvents Facebook's Technological Blocking Measures .......... 3 ARGUMENT .................................................................................................................. 4 A. Judgment On The Pleadings Standard .................................................................. 4 B. Power Has Violated California Penal Code 502(c)(1)-(4) and 502(c)(7) ............... 5 1. There Are No Facts In Dispute Regarding The Elements Of A 502(c) Violation ....................................................................................... 5 2. Facebook's Terms Of Use Are Enforceable As A Matter Of Law ............. 8 C. Facebook Is Entitled To Injunctive Relief To Stop Power's Impermissible Access To Its Systems..........................................................................................9 CONCLUSION ............................................................................................................... 9 III. IV. -i- FACEBOOK'S MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDMENT OF LIABILITY CASE NO. 5:08-C V-05780 JF 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 TABLE OF AUTHORITIES Page FEDERAL CASES Am. Online, Inc. v. LCGM, Inc., 46 F. Supp. 2d 444 (E.D. Va. 1998).......................................................................................7 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) ........................................................ 4 Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) ........................................................ 5 Chi-Mil Corp. v. W.T. Grant Co., 70 F.R.D. 352 (E.D. Wis. 1976) ............................................................................................ 4 EF Cultural Travel BV v. Zefer Corp., 318 F.3d 58 (1st Cir. 2003)....................................................................................................6 EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577 (1st Cir. 2001)..................................................................................................7 FEC v. Adams, 558 F. Supp. 2d 982 (C.D. Cal. 2008)....................................................................................4 Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542 (9th Cir. 1990) ............................................................................................... 4 Local Motion, Inc. v. Niescher, 105 F.3d 1278 (9th Cir. 1997) ............................................................................................... 8 Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238 (S.D.N.Y. 2000) ................................................................................ 7, 9 Southwest Airlines v. Farechase, Inc., 318 F. Supp. 2d 435 (N.D. Tex. 2004)...................................................................................8 Shurgard Storage Ctrs., Inc. v. Safeguard Self Storage, Inc., 119 F. Supp. 2d 1121 (W.D. Wash. 2000) ............................................................................. 8 ViChip Corp. v. Lee, 438 F. Supp. 2d 1087 (N.D. Cal. 2006)..................................................................................4 STATE CASES Cairo, Inc. v. Crossmedia Services, Inc., No. C 04-4825 JW, 2005 U.S. Dist. LEXIS 8450 (N.D. Cal. Apr. 1, 2005)...........................................................9 Chem v. New York Life Ins. Co., No. C 97-1780 SBA, 1997 U.S. Dist. LEXIS 20054 (N.D. Cal. Oct. 21, 1997) ....................................................... 8 Facebook, Inc. v. ConnectU LLC, et al., 489 F. Supp. 2d 1087 (N.D. Cal. 2007)..................................................................................8 OHS West:260792905.6 - ii - FACEBOOK'S MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDMENT OF LIABILITY CASE NO. 5:08-C V-05780 JF 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 OHS West:260792905.6 TABLE OF AUTHORITIES (continued) Page Facebook, Inc. v. Wallace, No. C 09-798 JF, 2009 U.S. Dist. LEXIS 107771 (N.D. Cal. Oct. 29, 2009) ..................................................... 8 Facebook, Inc. v. Guerbuez, No. C08-03889 JF, 2008 U.S. Dist. LEXIS 108921, *2 (N.D. Cal. Nov. 21, 2008) ..............................................8 Greenwich Ins. Co. v. Media Breakaway, LLC, No. CV08-937 CAS, 2009 U.S. Dist. LEXIS 63454 (C.D. Cal. Jul. 22, 2009 )........................................................4 FEDERAL STATUTES California Penal Code 502........................................................................................ 1, 5, 6, 8, 9 Computer Fraud and Abuse Act .......................................................................................... 6, 7, 8 Federal Rule of Civil Procedure 12(c) ......................................................................................... 1 Fed. R. Civ. P. 56(c)................................................................................................................4, 5 - iii - FACEBOOK'S MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDMENT OF LIABILITY CASE NO. 5:08-C V-05780 JF 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 I. MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Facebook, Inc. ("Facebook") moves this court for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c) with respect to its second cause of action or, in the alternative, for Summary Judgment with respect to that claim. Defendants Power Ventures, Inc. and Steven Vachani (herein collectively referred to as "Power") have admitted certain facts set forth in Facebook's complaint. Based upon those admissions, no dispute of material fact exists regarding Facebook's claim under California Penal Code 502. Accordingly, judgment on the pleadings on Facebook's California Penal Code 502 claim is warranted. The following facts are not in dispute. Power accessed the Facebook website in violation of Facebook's Terms of Use. When Facebook tried to stop Power, Power worked around Facebook's technical barriers. When Facebook asked Power to say it will not access the website without authorization, Power would not give assurances. Power's only defense is a legal one: it argues that Facebook's Terms of Use are "legally unenforceable." This Court has repeatedly found this argument meritless and should do so again here. Given the indisputable liability, a permanent injunction should be entered stopping Power from soliciting or storing Facebook login information, accessing or attempting to access Facebook's website and computer systems or engaging in any other unlawful activity. II. STATEMENT OF UNDISPUTED MATERIAL FACTS The following factual allegations from Facebook's First Amended Complaint (Dkt. No. 9) are admitted by Power in its Amended Answer (Dkt. No. 54) ("Amended Answer"). A. Access To and Use of Facebook Is Limited "Facebook owns and operates the widely popular social networking website located at http://www.facebook.com." Amended Answer 2. "Facebook users register with a unique user name and password." Id. 21. "Before Facebook activates a username and permits a user access to certain features of the Facebook website, the user must agree to Facebook's Terms of Use, which set forth the acceptable terms of use of its computer network and prohibit users from conducting certain activities." Id. 29; see also Dkt. No. 38, May 11, 2009 Order Denying OHS West:260792905.6 -1- FACEBOOK'S MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDMENT OF LIABILITY CASE NO. 5:08-C V-05780 JF 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 Motion to Dismiss at p 2 ("Every Facebook user must register before using the website, and registration requires the user to assent to Facebook's Terms of Use, which essentially is a user agreement that sets forth the acceptable terms of use"). Specifically, "Facebook's Terms of Use require Facebook users to abide by certain rules of user conduct." Id. 30 "In exchange for the free service, the users agree they will refrain from": a. solicit ing personal information from anyone under 18 or soliciting passwords or personally ident ifying information for commercial or unlawful purposes; b. using or attempting to use another's account, service or system without authorization from Facebook, or creating a false identity on Facebook; c. using automated scripts to collect information from or otherwise interact with the Facebook website; d. impersonat ing any person or entity, or falsely stating or otherwise misrepresenting oneself; e. uploading, posting, transmitting sharing or otherwise making available any unsolicited or unauthorized advertising, solicitations, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation; f. harvest ing or collecting email addresses or other contact information of other users from Facebook by electronic or other means for purposes of sending unsolicited emails or other unsolicited communications; g. registering for more than one User account or falsely stating or otherwise misrepresenting oneself; and h. using Facebook's website for commercial use without the express permission of Facebook. Id. 30. B. Facebook allows interactions with other websites The parties agree that Facebook permits integration with third-party websites through the Facebook Connect service. Id. 28; Amended Answer 28 ("Defendants admit that Facebook permits limited integration with third party websites through Facebook Connect"). "Facebook Connect "allows users to `connect' their Facebook identity, friends and privacy to any site using a trusted authentication interface. This interface ensures that Facebook users only provide their OHS West:260792905.6 -2- FACEBOOK'S MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDMENT OF LIABILITY CASE NO. 5:08-C V-05780 JF 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 login information to Facebook, and that this sensitive information is stored only on Facebook's secure servers not the servers of the third party websites. By offering Facebook Connect, Facebook enables users to integrate with other sites without compromising Facebook's commitment to safeguard its users' privacy and security." FAC 28. "Facebook does not permit third party access to Facebook user profile data unless such third parties use Facebook Connect." Id. Power has not agreed to the Facebook Connect terms of use. C. Power's Illegal Activities 1. Power Knowingly Accesses Facebook's Computer Servers Without Authorization. The material facts relating to Power's improper accessing of Facebook's servers are not in dispute. Power admits that it "permits users to enter their account information to access the Facebook site through Power.com." Amended Answer 18; see also 45, 50 (same). To this end, Power concedes that it has "developed computer software and other automated devices and programs to access and obtain information from the Facebook website for aggregating services." Id. 74. This means of "accessing" and "obtaining information" is commonly known as "scraping," a well-recognized form of cyber-attack on the Internet invo lving the trespass to a computer server. Following the trespass, Power has admitted that it copied and stored all the Facebook data files necessary to display the Facebook website through the Power browser. Id. 75 ("Defendants admit that Power creates temporary cached copies of the Facebook website in order to display it through the Power browser."). Blankly, Power admits that it "provided users with tools necessary to access Facebook through Power.com." Id. 64. Power concedes that "[a]t no time have Defendants received permission from Facebook to represent that solicitation of Facebook username and passwords was authorized or endorsed by Facebook." Id. 53. 2. Power Circumvents Facebook's Technological Blocking Measures. On December 1, 2008, Facebook notified Vachani that "Power.com's access of Facebook's website and servers was unauthorized and violated Facebook's rights, including Facebook's trademark, copyrights, and business expectations with its users." FAC 57; OHS West:260792905.6 -3- FACEBOOK'S MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDMENT OF LIABILITY CASE NO. 5:08-C V-05780 JF 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 Amended Answer 57. At first, Power expressed its agreement to abide by Facebook's Terms and "integrate Power.com with Facebook Connect." Amended Answer 58. But on December 26, Mr. Vachani sent an e-mail to Facebook stating Power's "business decision" to continue its website's unauthorized use of Facebook user login credentials and unauthorized access to Facebook's computers until it was able to fully implement Facebook's Connect service. FAC 63; Amended Answer 63; see also Declaration of Julio C. Avalos In Support of Facebook's Motion for Summary Judgment ("Avalos Decl.") Exhibit A, a true and correct copy of Mr. Vachani's e-mail as well as other correspondence between Mr. Vachani and Facebook's counsel. It is undisputed that "Facebook implemented technical measures to block users from accessing Facebook through Power.com." Amended Answer 63. But despite these blocking efforts, Power admits that it subsequently "provided [its] users with tools necessary to access Facebook through Power.com." Id. 64. III. ARGUMENT A. Judgment On The Pleadings Standard "Judgment on the pleadings is proper when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law." FEC v. Adams, 558 F. Supp. 2d 982, 987 (C.D. Cal. 2008) (quoting Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1990)). "Judgment on the pleadings may be granted as to fewer than all of the claims, or as to part of a claim." Id., citing, Chi-Mil Corp. v. W.T. Grant Co., 70 F.R.D. 352, 358 (E.D. Wis. 1976). Similarly, summary judgment is appropriate where "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "Material facts are those which may affect the outcome of the case." ViChip Corp. v. Lee, 438 F. Supp. 2d 1087, 1092-93 (N.D. Cal. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). "The moving party has the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each cause of action upon which the moving party seeks judgment." Greenwich Ins. Co. v. Media Breakaway, LLC, No. CV08-937 CAS, OHS West:260792905.6 -4- FACEBOOK'S MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDMENT OF LIABILITY CASE NO. 5:08-C V-05780 JF 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 2009 U.S. Dist. LEXIS 63454, *13 (C.D. Cal. Jul. 22, 2009 ) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). "If the moving party has sustained its burden, the nonmoving party must then identify specific facts, drawn from materials on file, that demonstrate that there is a dispute as to material facts on the elements that the moving party has contested." Id., citing, Fed. R. Civ. P. 56(c). Power has admitted the truth of the factual allegations giving rise to Facebook's claims. There are no further material facts in dispute. B. Power Has Violated California Penal Code 502(c)(1)-(4) and 502(c)(7) 1. There Are No Facts In Dispute Regarding The Elements Of A 502(c) Violation Facebook is entitled to summary judgment on this claim. There are no disputed material facts relating to the fact that (i) Defendants are registered Facebook users, (ii) that all Facebook users are required to agree to Facebook's Terms of Use, (iii) that the recitation of Facebook's Terms of Use in Paragraph 30 of the FAC is accurate, and (iv) that those terms expressly prohibit various of Defendants' acts. California Penal Code Section 502(e)(1) provides a civil cause of action for the owner or lessee of the computer or computer network who suffers damage or loss as a result of a violation of Section 502(c). Compensatory damages, equitable relief, punitive damages and attorney fees' are all recoverable under the statute. See Penal Code 502(e)(1). A "public offense" in violation of California Penal Code 502(c) is established when a person: (1) Knowingly access and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data. (2) Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system or computer network. (3) Knowingly and without permission uses or causes to be used computer services. OHS West:260792905.6 -5- FACEBOOK'S MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDMENT OF LIABILITY CASE NO. 5:08-C V-05780 JF 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 (4) Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network. ... (7) Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network. Power has admitted facts sufficient to establish a violation of Section 502. Power has admitted to knowingly accessing and without permission taking, copying, and/or making use of Facebook login information data. Defendants have admitted that "that they operate a website, www.power.com, which offers to integrate multiple social networking accounts into a single experience on Power.com." Amended Answer 5. Power has admitted that it "permits users to enter their account information to access the Facebook site through Power.com." Id. 18; see also 45, 50 (same). As Defendants succinctly concede: they have "developed computer software and other automated devices and programs to access and obtain information from the Facebook website for aggregating services." 74. Indeed, Power's knowing access was so brazen, they continued to "provide[] users with tools necessary to access Facebook through Power.com," id. 64, even after "Facebook implemented technical measures to block users from accessing Facebook through Power.com." Id. 63. Following the trespass, Power has admitted that it copied, took and stored all the Facebook data files necessary to display the Facebook website through the Power browser. Id. 75 ("Defendants admit that Power creates temporary cached copies of the Facebook website in order to display it through the Power browser."). Power's actions were indisputably without permission because they exceeded the terms of use. In determining whether computer access was without permission under the California Penal Code, the Court may look to the analogous Computer Fraud and Abuse Act, where courts have repeatedly held that "unauthorized access" or "access in excess of authorized access" is established when a user engages in computer use that violates the terms of a contract made between the user and the computer owner (such as a website's terms of use). See, e.g., EF Cultural Travel BV v. Zefer Corp., 318 F.3d 58, 62 (1st Cir. 2003) (noting that "[a] lack of OHS West:260792905.6 -6- FACEBOOK'S MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDMENT OF LIABILITY CASE NO. 5:08-C V-05780 JF 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 authorizat ion could be established by an explicit statement on the website restricting access," giving rise to a Computer Fraud and Abuse Act violation if a website user thereafter violated the terms of use); EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 581-582 (1st Cir. 2001) (finding that defendant's use of a computerized "scraper" program to take information from plaintiff's website likely exceeded authorized access where such use at least implicitly violated an agreement between the parties); Southwest Airlines v. Farechase, Inc., 318 F. Supp. 2d 435, 43940 (N.D. Tex. 2004) (finding that Southwest sufficiently stated a CFAA claim where Southwest had directly informed the defendant that its scraping of southwest.com was unauthorized); Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238, 253 (S.D.N.Y. 2000) (finding that plaintiff successfully established that defendant's use of its website was unauthorized within the meaning of the CFAA simply by virtue of the fact that plaintiff objected to defendant's use); Am. Online, Inc. v. LCGM, Inc., 46 F. Supp. 2d 444, 450-451 (E.D. Va. 1998) (concluding that defendants' use of AOL membership to harvest e-mail addresses of AOL users was unauthorized because such actions violated AOL's terms of service). Defendants admit that they (like all registered users) were required to agree to Facebook's Terms of Use. See Amended Answer 29. Defendants agree that these Terms "set forth the acceptable terms of use of its [Facebook's] computer network and prohibit users from conducting certain activities." Id. Defendants agree that Facebook's terms prohibit, among other things, "using automated scripts to . . . interact with the Facebook website," "falsely stating or otherwise misrepresenting oneself," "uploading, posting, transmitting, sharing, or otherwise making available any unsolicited or unauthorized advertising, solicitations, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation," "harvesting or collecting email addresses or other contact information of other users from Facebook by electronic or other means for purposes of sending unsolicited emails or other unsolicited communications," and "using Facebook's website for commercial use without the express permission of Facebook." Amended Answer 30. Power's actions, including its accessing and scraping of Facebook as well as its spam promotional campaign, appear to have violated each of these provisions. OHS West:260792905.6 -7- FACEBOOK'S MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDMENT OF LIABILITY CASE NO. 5:08-C V-05780 JF 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 Facebook has suffered damage or loss. Facebook has been forced to commit corporate resources to deal with the repeated attacks by Power, including Power's admitted circumvent ion of Facebook's technological blocking measures. Defendants admit that on December 26, 2008, Facebook "implemented technical measures to block users from accessing Facebook through Power.com" Id. 63. Power circumvented these blocking measures, and admittedly continued to "provide[] [its] users with tools necessary to access Facebook through Power.com," i.e., continued to scrape the Facebook site and to provide unauthorized access to Facebook in contravention of the Facebook Terms of Use. Id. 64. Power's circumvention resulted in their "creating temporary cached copies of the Facebook website in order to display it through the Power browser" to third-parties. Amended Answer 64, 75. The time and resources invested by Facebook in tracking Power's attacks, blocking Power's attacks, and then fielding even more attacks after Power's admitted circumvention are cognizable injuries demonstrating damage or loss under the computer trespass statutes. See Shurgard Storage Ctrs., Inc. v. Safeguard Self Storage, Inc., 119 F. Supp. 2d 1121, 1126 (W.D. Wash. 2000) (holding that damage under the Computer Fraud and Abuse Act includes impairment to the integrity or availability of data, a program, a system or information). See also California Penal Code 502(e)(1). 2. Facebook's Terms Of Use Are Enforceable As A Matter Of Law. Power's sole defense is that Facebook's terms of use are unenforceable. The enforceability of Facebook's Terms of Use is a legal question. See Local Motion, Inc. v. Niescher, 105 F.3d 1278, 1280 (9th Cir. 1997) (cited in Chem v. New York Life Ins. Co., No. C 97-1780 SBA, 1997 U.S. Dist. LEXIS 20054 (N.D. Cal. Oct. 21, 1997) ("The enforceability of a contract presents a question of law")). This Court has enforced Facebook's Terms of Use. See, e.g., Facebook, Inc. v. ConnectU LLC, et al., 489 F. Supp. 2d 1087, 1090-91 (N.D. Cal. 2007) (enforcing provisions of the Terms of Use); Facebook, Inc. v. Wallace, No. C 09-798 JF, 2009 U.S. Dist. LEXIS 107771 (N.D. Cal. Oct. 29, 2009) (same); see also Facebook, Inc. v. Guerbuez, No. C08-03889 JF, 2008 U.S. Dist. LEXIS 108921, *2 (N.D. Cal. Nov. 21, 2008) (entering permanent injunction prohibiting, inter alia, Defendant from "violating, or assisting or inducing others to violate, Facebook's Terms of Use"). The Court has also specifically enforced clickOHS West:260792905.6 -8- FACEBOOK'S MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDMENT OF LIABILITY CASE NO. 5:08-C V-05780 JF 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 through agreements forbidding scraping. See, e.g., Cairo, Inc. v. Crossmedia Services, Inc., No. C 04-4825 JW, 2005 U.S. Dist. LEXIS 8450, *12-14 (N.D. Cal. Apr. 1, 2005) (enforcing terms included in website's terms of use where website was accessed by an automated bot scraping program and noting that "[w]hile new commerce on the Internet has exposed courts to many new situations, it has not fundamentally changed the principles of contract. It is standard contract doctrine that when a benefit is offered subject to stated conditions, and the offeree makes a decision to take the benefit with knowledge of the terms of the offer, the taking constitutes acceptance of the terms, which accordingly become binding on the offeree.") (quoting Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 (2d Cir. 2004)). It cannot be disputed that Facebook's Terms are legally enforceable on registered Facebook users. C. Facebook Is Entitled To Injunctive Relief To Stop Power's Impermissible Access To Its Systems. California Penal Code Section 502(e)(1) provides in pertinent part that "[t]he owner . . . of the computer, computer system, computer network, computer program, or data who suffers damage or loss by reason of a violation of any of the provisions of subdivision (c) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief" (emphasis added). Power has demonstrated that unless enjoined, it will continue to refuse to abide by Facebook's Terms of Use. Power has previously gone so far as to circumvent technological blocking measures instituted by Facebook to keep Power from attacking its servers. Facebook respectfully requests that the Court enter a permanent injunction ordering Power and its agents and/or assigns not to further access Facebook's site, service, and servers without first agreeing to the Facebook Terms of Use and/or terms of the Facebook Connect program and should be further ordered to abide by those Terms of Use. IV. CONCLUSION For the foregoing reasons, Facebook respectfully requests that the Court grant Facebook's Motion for Judgment on the Pleadings, or, in the alternative, Summary Judgment on its second cause of action. OHS West:260792905.6 -9- FACEBOOK'S MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDMENT OF LIABILITY CASE NO. 5:08-C V-05780 JF 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 Dated: December 23, 2009 ORRICK, HERRINGTON & SUTCLIFFE LLP /s/ Jessica S. Pers JESSICA S. PERS Attorneys for Plaintiff FACEBOOK, INC. CERTIFICATE OF SERVICE I hereby certify that this document(s) filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants on December 23, 2009. Dated: December 23, 2009 Respect fully submitted, /s/ Jessica S. Pers JESSICA S. PERS OHS West:260792905.6 - 10 - FACEBOOK'S MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDMENT OF LIABILITY CASE NO. 5:08-C V-05780 JF