Facebook, Inc. v. Wallace et al

Filing 1

COMPLAINT against Sanford Wallace, Adam Arzoomanian, Scott Shaw ( Filing fee $ 350.00, receipt number 54611004760.). Filed byFacebook, Inc.. (gm, COURT STAFF) (Filed on 2/24/2009) (Additional attachment(s) added on 3/5/2009: # 1 Civil Cover Sheet) (gm, COURT STAFF).

Facebook, Inc. v. Wallace et al Doc. 1 i David Chiappetta, Slate Bar No. 172099 dchiappetta@pcrkinscoie.com PERKINS COIE LLP 3 101 Jefferson Drive Menlo Park, California 94025 Telephone: 650.838.4300 Facsimile: 650.838.4350 0SFEB214 PH12: U7 rich;.*" ···;. v.;:;;ing r; 1.1 :« u.s. L-isi;;!-: i court ho i>:st of c.,\ s.j. James McCullagh, pro hac vice appljcduian to follow jmccullagh@pei-kinscoie.com Joseph Cutler, pro hac vice application to follow jcuiler@perkinscoie.com PERKINS COIE LLP 1201 Third Avenue, Suite 4800 Seattle, Washington 98101 Telephone: 206.359.8000 Facsimile: 206.359.9000 Attorneys for Plaintiff FACEBOOK, INC. 12 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 13 14 15 JF 16 17 FACEBOOK, INC., a Delaware corporation, 00798 COMPLAINT FOR: 1) VIOLATION OF 15 U.S.C. § 7701, etsea., Plaintiff, v. 18 19 20 21 22 23 CONTROLLING THE ASSAULT OF NONSOLICITED PORNOGRAPHY AND SANFORD WALLACE, ADAM ARZOOMANIAN, and SCOTT MARKETING ACT OF 2003 ["CAN-SPAM"]; 2) VIOLATION OF 18 U.S.C. § 1030, THE COMPUTER FRAUD AND ABUSE ACT; 3) VIOLATION OF CALIFORNIA BUSINESS SHAW, individuals; and DOES 1 through 25, inclusive, individuals and/or business entities of unknown nature. AND PROFESSIONS CODE § 229489, et seq., THE CALIFORNIA ANTI-PHISHING ACT; Defendants. AND 4) VIOLATION OF CALIFORNIA PENAL CODE § 502, THE CALIFORNIA COMPREHENSIVE COMPUTER DATA 24 25 ACCESS AND FRAUD ACT. 26 27 28 [DEMAND FOR.IURY TRIAL] COMPLAINT Dockets.Justia.com 1 For its complaint, Facebook, Inc. ("Facebook") alleges as follows: 2 3 4 I. 1. INTRODUCTION Facebook is the most popular social networking site on the Internet with more than 175 million active users worldwide. Founded in February 2004, Facebook is a social utility that 5 helps people communicate more efficiently with their friends, family and coworkers. The 6 7 8 company develops technologies that facilitate the sharing of information through the social graph - the digital mapping of people's real-world social connections. 2. In addition to providing users with an array of tools for communicating with 9 10 11 12 13 friends, family and coworkers, Facebook vigilantly protects the privacy and security of its users. User privacy is a top priority for the company. Facebook tightly controls access to its network and the data housed thereon. Facebook leads the industry in giving people tools to control what information they share and with whom they share it. Users have the ability to share and restrict information based on specific friends or friend lists, and to designate who may communicate with 14 15 16 them using Facebook's various messaging options. Facebook also enforces a variety of security policies, including a prohibition on soliciting or sharing user login information (username and password) or accessing other users' accounts. 17 18 3. Along with these powerful privacy options and security measures, Facebook devotes substantial resources to combat unauthorized use of its website. As with any popular 19 20 21 internet service, it is inevitable that Facebook will attract phishers and spammers who seek to illegally exploit Facebook's user-base for personal profit. 4. This action arises from Defendants' abuse of Facebook and Facebook's users 22 23 through a spam and phishing campaign. Defendants are using false and misleading messages to direct Facebook users to websites designed to deceive them into divulging their Facebook 24 25 26 27 28 usernames and passwords ("phishing" websites). Defendants then use these login credentials to gain unauthorized access to Facebook user accounts for the purpose of sending unsolicited commercial electronic messages ("spam") to other Facebook users. 5. Defendants' unlawful actions are causing irreparable harm to Facebook and to Facebook's users. Accordingly, Facebook seeks injunctive, equitable, and other relief including, -J2^ COMPLAINT 1 but not limited to compensatory, statutory, exemplary, aggravated, and punitive damages; 2 3 disgorgement of the proceeds of Defendants' scheme; and reasonable costs and attorneys' fees. H. PARTIES 4 5 6. Plaintiff Facebook is a Delaware corporation with its principal place of business in Palo Alto, California. 6 7 8 9 10 11 7. Defendant Sanford Wallace is an individual believed to be residing or working at 7800 S. Rainbow Blvd., Apt. 1118, Las Vegas, NV 89139-6204. 8. Defendant Scott Shaw is an individual believed to be residing or working at 7800 S. Rainbow Blvd., Las Vegas NV 89139-6204 9. Defendant Adam Arzoomanian is an individual believed to be residing or working at 375 E Harmon Ave., Las Vegas, NV 89169-7081. 12 13 14 10. Does 1 -25 are persons or entities responsible in whole or in part for the wrongdoing alleged herein. Facebook is informed and believes, and based thereon, alleges that Does 1-25 individually directed, conducted, participated in, ratified, endorsed, or were otherwise 15 16 17 18 involved in the acts complained of, and that they have liability for such acts. Facebook is ignorant of the true names of Does 1-25, which are fictitious names. Facebook will amend this Complaint if and when the identities of such persons or entities and/or the scope of their actions become known. 19 20 21 HI. 11. JURISDICTION AND VENUE This Court has federal question jurisdiction over this action under 28 U.S.C. § 1331, because this action alleges violations of the CAN-SPAM Act of 2003 (15 U.S.C. § 7701 22 23 24 25 26 et seq.) and the Computer Fraud and Abuse Act (18 U.S.C. § 1030 et seq.). The Court has supplemental jurisdiction over the remaining claims under 29 U.S.C. § 1367. 12. Venue is proper in this District under 28 U.S.C. § 1391 (b)(2) because a substantial part of the events giving rise to the claims raised in this lawsuit occurred in this District. 13. Jurisdiction and venue are also proper in this Court under Cal. Penal Code 27 28 § 520(j), which states: "For purposes of bringing a civil or a criminal action under this section, a person who causes, by any means, the access of a computer, computer system, or computer 13_: COMPLAINT 1 2 network in one jurisdiction from another jurisdiction is deemed to have personally accessed the computer, computer system, or computer network in each jurisdiction." 3 4 5 6 7 14. During all relevant times, Defendants repeatedly, knowingly, and intentionally accessed or permitted access to Facebook servers located in California to access without authorization the accounts of Facebook users and send spam to other Facebook users. While accessing Facebook servers and sending spam to Facebook users, Defendants made systematic and continuous contacts with California, and have targeted their wrongful acts at Facebook, 8 9 10 which is headquartered in Palo Alto, California. Facebook's servers and offices are present in this judicial district. At all relevant times, Defendants were aware that their illegal acts would harm Facebook and its computer network. 11 12 15. IV. INTRA-DISTRICT ASSIGNMENT Assignment to the San Jose Division of this Court is appropriate under 13 Civil L.R. 3-2, in that the claims asserted herein arose in the county of Santa Clara. Facebook is 14 15 headquartered in the county of Santa Clara, and it has servers located at several locations in this county. 16 V. FACTS AND BACKGROUND 17 18 19 A. Facebook Background 16. Facebook owns and operates the widely popular social networking website located at http://www.facebook.com. Facebook currently has more than 175 million active users. 20 21 22 17. To access its computer network and social networking website, Facebook requires users to register and establish a unique username and password. Only registered users may access Facebook user profiles and use the Facebook service. 23 18. Registered users may customize their profile by adding personal information, 24 25 content related to their interests, photographs, and other information that they can then share with other Facebook users. 26 27 28 19. Facebook users may only be contacted by other registered Facebook users, authorized Facebook Pages and Groups, or Facebook itself. -4COMPLAINT 20. Users increase the number of their Facebook connections by becoming "friends" with other Facebook users. A Facebook friendship is mutual. Both users must agree to be friends before a connection is established between their Facebook accounts. In this manner, Facebook creates a virtual social network of interconnected profiles. 21. Facebook allows registered Facebook users to exchange messages in several ways, including by way of "Facebook Chat" (real-time instant messaging), internal messages to another user's "inbox," and messages posted on another user's "Wall." Facebook permits users to control access to their Facebook messaging options so they can control the privacy of their communications and minimize unwanted contact. 10 22. Facebook Wall messages are particularly attractive to spammers. Only registered 11 12 13 14 15 Facebook users may post Wall messages, and they may only do so on the Walls of friends who have permitted such postings via their privacy settings. A user's Wall and the messages thereon are visible to anyone permitted to see the user's profile. Therefore, a spammer who has gained access to a user account can reach multiple Facebook users with a single Wall message. Moreover, because Wall messages are displayed with a header showing the sender's name and 16 17 18 profile picture, the recipient (and others viewing the recipient's Wall) are more likely to read a spam Wall message from a compromised user account believing the message to have originated from a known sender. 19 23. Spammers automate the sending of messages by using short computer scripts to 20 21 22 automatically send unsolicited Wall messages to every friend of a compromised Facebook account. Automated Wall spamming is designed for maximum visibility and impact and can result in the rapid dissemination of spam. 23 24 25 26 27 28 24. As described above, an important aspect of Facebook is that its users generally interact with and receive communications only from their friends. Users have complete control over those with whom they choose to interact. As such, Facebook users do not expect to receive--and should not receive--spam while using Facebook. Facebook does not tolerate or permit use of its services or site for sending spam. As described below, Facebook's Terms of Use -5COMPLAINT 1 explicitly prohibit any unsolicited or unauthorized advertising, solicitations, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation. B. Facebook Terms of Use 2 3 4 5 25. Anyone who accesses or uses Facebook's web site at www.facebook.com is subject to Facebook's Terms of Use. These terms set forth acceptable and authorized uses of Facebook's network and prohibit users from conducting certain activities. Facebook's Terms of 7 Use are attached as Exhibit A and can also be found at: http://www.facebook.com/terms.php. 26. services from: 8 9 10 11 Facebook's Terms of Use prohibit anyone who uses or accesses Facebook's site or a. using the website at www.facebook.com or the mobile version thereof (the "Site") in a manner that could damage, disable, overburden or impair the Site; 12 13 14 b. using any data mining, robots, scraping or similar data gathering or extraction methods on the Site; c. d. using automated scripts to collect information from or otherwise interact with the Site; uploading, posting, transmitting, sharing or otherwise making available any unsolicited or 15 16 17 18 unauthorized advertising, solicitations, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation; e. 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; 19 20 21 22 23 24 25 26 27 28 f. registering for more than one User account or falsely stating or otherwise misrepresenting oneself; g. soliciting personal information from anyone under 18 or soliciting passwords or personally identifying information for commercial or unlawful purposes; h. impersonating any person or entity, or falsely stating or otherwise misrepresenting oneself; i. using or attempting to use another's account, service or system without authorization from Facebook, or creating a false identity on Facebook; and -6- COMPLAINT 1 using the Site for commercial use without the express permission of Facebook. 2 3 4 5 6 7 8 9 10 C. Defendants' Unauthorized Activities 27. All Defendants have either accessed or are registered users of Facebook and are, therefore, subject to Facebook's Terms of Use. 28. At least one of the Defendants, Sanford (aka "Spamford") Wallace, is a notorious Internet scam artist who has been involved in various illegal spamming and malware activities since the mid 90s. Indeed, Mr. Wallace has both Federal Trade Commission and civil judgments against him for these activities that total in excess of $235 million. Myspace, Inc. v. Wallace, No. CV 07-1929-ABC, 2008 WL 1766714, *1 (CD. Cal. April 15,2008); F.T.C. v. Seismic Entm't Prod., Inc., No. Civ. 04-377-JD, 2004 WL 2403124, *1 (D. N.H. Oct. 21,2004); CompuServe 11 Inc. v. CyberPromotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997). 12 13 14 29. At no time has Facebook granted Defendants permission to conduct any of the illegal commercial activity on Facebook's website complained of herein. 30. On information and belief, Defendants fraudulently gained access to legitimate 15 16 17 18 19 Facebook user accounts, either by misappropriating login information through their "phishing" websites, or other methods. On information and belief, between November 5,2008 and the present, Defendants have and continue to use automated means to access legitimate Facebook user accounts and send spam Wall messages to other Facebook users. 31. These spam messages are generally aimed at deceiving recipients into visiting 20 21 22 23 24 25 26 Defendants' phishing websites in an attempt to acquire additional Facebook users' login credentials. Spam recipients are further directed to third-party commercial websites. On information and belief, Defendants' receive compensation for driving traffic to those sites. 32. Facebook has taken extraordinary measures to investigate and stop Defendants' phishing and spam campaign. Defendants have and continue to change their tactics, attempting to evade Facebook's countermeasures. D. Harm to Facebook 27 28 33. Traditional spam messages are easily identified and ignored. Defendants' unauthorized use of compromised Facebook accounts to send spam makes those messages more -7COMPLAINT 1 2 difficult to identify as spam, because they appear to be personal messages from friends. This taints the Facebook experience for affected Facebook users. As a result, Facebook is suffering 3 4 5 6 significant harm to its reputation and goodwill. 34. Facebook has suffered economic damages in excess of $5,000 attributable to efforts and resources devoted to combat Defendants' spam and phishing activities, to minimize the disruptive impact of Defendants' actions on Facebook and its users, and to locate and identify 7 the Defendants. Facebook's economic damages continue to mount as Facebook is forced to 8 9 10 implement new methods and techniques in an effort to identify and block Defendants' everchanging tactics. 35. Facebook will continue to suffer immediate and irreparable harm, damage, and 11 12 loss for as long as the Defendants continue their illegal actions. E. Special Circumstances of Defendant Scott Shaw 13 14 15 16 36. Defendant Scott Shaw filed for Chapter 13 Bankruptcy in the U.S. Bankruptcy Court of Nevada (Las Vegas) on April 14,2008. See Bankruptcy Case #: 08-13640-lbr. 37. As part of Defendant Shaw's Bankruptcy Proceedings, the Bankruptcy Code, 11 U.S.C., § 101 et seq, provides for an automatic bankruptcy stay with respect to any action or 17 18 proceeding that was or could have been commenced before the commencement of Defendant Shaw's bankruptcy case. 19 38. All of the unauthorized activity alleged in this complaint by Defendant Shaw took 20 21 22 23 place more than six months after Defendant Shaw filed for bankruptcy and is therefore not subject to the automatic bankruptcy stay, 11 U.S.C. §362(a)(l),. 39. To the extent that any claim or statement herein is alleged or deemed to seek relief from Defendant Shaw in violation of the automatic bankruptcy stay, 11 U.S.C. §362(a)(l), or to 24 seek enforcement against property of the estate (as defined by 11 U.S.C, §541), Plaintiff 25 26 27 28 Facebook does not seek such relief or enforcement at this time and will not seek such relief or enforcement absent an order of the Nevada Bankruptcy Court granting relief from the automatic bankruptcy stay. -8COMPLAINT 1 2 VI. CLAIMS FOR RELIEF COUNT I - CONTROLLING THE ASSAULT OF NON-SOLICITED PORNOGRAPHY AND MARKETING ("CAN-SPAM"), 15 U.S.C. § 7701, etseq. 40. 4 Plaintiff Facebook realleges and incorporates by reference, as if fully set forth herein, the allegations in all the preceding paragraphs. 41. 6 7 Defendants' electronic messages are "commercial electronic mail messages," as defined in 15 U.S.C. § 7702(2)(A), because their primary purpose is the commercial advertisement or promotion of a commercial product or service (including content on an Internet 8 9 10 website operated for a commercial purpose). 42. On information and belief, Defendants have and continue to "initiate" commercial electronic mail messages, as defined in 15 U.S.C. 7702(9), because they are originating or transmitting such messages or procuring the origination or transmission of such messages, as 12 defined in 15 U.S.C. 7702(12) and 15 U.S.C. 7704(g)(2). 43. 14 Facebook is an "Internet access service," as defined in 15 U.S.C. § 7702(11), because it provides a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, 16 17 information, and other services as part of a package if services offered to consumers. 44. Facebook's website and computers are "protected computer[s]," as defined in 18 19 20 15 U.S.C. § 7702(13), because they are used in interstate or foreign commerce or communication. 45. On information and belief, Defendants have and continue to initiate transmissions of commercial electronic mail messages, through Facebook's protected computers and to 21 22 Facebook users, which contain or are accompanied by information headers that are materially false or materially misleading, in violation of 15 U.S.C. 7704(a)(l). 46. On information and belief, Defendants are engaging in a pattern or practice of 23 24 25 initiating transmissions, through Facebook's protected computers to Facebook users, of commercial electronic mail messages with actual knowledge or knowledge fairly implied on the 26 basis of objective circumstances, that the messages' subject heading are likely to mislead a 27 28 COMPLAINT /S 1 2 3 4 5 6 7 8 recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message in violation of 15 U.S.C. 7704(a)(2). 47. On information and belief, Defendants are engaging in a pattern or practice of initiating transmission, through Facebook's protected computers to Facebook users, of commercial electronic mail messages that do not contain a functioning return electronic mail address or other Internet-based opt-out mechanism, clearly and conspicuously displayed, in violation of 15 U.S.C. § 7704(a)(3). 48. On information and belief, Defendants are engaging in a pattern or practice of 9 initiating transmission of commercial electronic mail messages, through Facebook's protected 10 11 computers to Facebook users, that do not contain (1) clear and conspicuous identification that the messages were advertisements or solicitations, (2) clear and conspicuous notice of the opportunity 12 13 to decline to receive further commercial emails from the sender, and (3) a valid physical postal address of the sender in violation of 15 U.S.C. § 7704(a)(5). 14 49. On information and belief, Defendants are initiating the transmission of 15 16 17 commercial electronic mail messages (or assisting in originating such messages by providing or selecting addresses to which the message are transmitted) through Facebook's protected computers to Facebook users in violation of 15 U.S.C. § 7704(a). On information and belief, 18 19 20 such messages are being sent with actual knowledge (or knowledge fairly implied on the basis of objective circumstances) that the electronic mail addresses were obtained using an automated means from a website or proprietary online service operated by another that includes a notice that 21 22 23 24 25 the website or online service will not give, sell, or otherwise transfer addresses it maintains to any other party for purposes of initiating or enabling other to initiate electronic mail messages, in violation of 15 U.S.C. § 7704(b)(l). 50. On information and belief, Defendants are accessing Facebook's protected computers and computer network without authorization in violation of 15 U.S.C. § 7704(b)(3) 26 27 28 and knowingly relaying or retransmitting commercial electronic mail messages from Facebook's protected computers and computer network in violation of 15 U.S.C. § 7704(a). -10COMPLAINT 1 2 51. Defendants are adversely affecting Facebook by causing it to expend time and resources to investigate and prevent the unauthorized access and abuse of its computer network, 3 4 5 6 and to protect its users against unsolicited commercial electronic messages. Defendants' actions are also deterring Facebook's existing users and potential new users from using Facebook, and damaging Facebook's good will and reputation with its customers and the community at large. 52. Facebook is a provider of Internet access services adversely affected by 7 8 9 Defendants' violations of 15 U.S.C. 7704(a)(l); 15 U.S.C. 7704(a)(2), (3), and (5); and on information and belief 7704(b)(l) and (3). Accordingly, Facebook brings this civil action under 15 U.S.C. 7706(g). 10 11 12 13 53. Facebook is entitled to an injunction against further violations by the Defendants as provided by 15 U.S.C. § 7706(g)(l)(A). Facebook will continue to suffer immediate and irreparable harm if Defendants' conduct is not enjoined. Facebook has no adequate remedy at law. 14 15 16 17 54. As provided in 15 U.S.C. § 7706(g)(l)(B), Facebook is entitled to the greater of its actual monetary loss or statutory damages as calculated in 15 U.S.C. § 7706(g)(3)(A) in an amount to be proven at trial. 55. Facebook is entitled to aggravated damages pursuant to 15 U.S.C. § 7706(g)(3)(C) 18 19 20 21 22 in an amount equal to three times the amount otherwise available because Defendants committed their violations willfully and knowingly and because Defendants' unlawful activity included one or more of the aggravated violations set forth in 15 U.S.C. § 7704(b). 56. Facebook is entitled to reasonable costs, including reasonable attorneys'fees as provided by 15 U.S.C. § 7706(g)(4). 23 24 25 COUNT II - COMPUTER FRAUD AND ABUSE ACT, 18 U.S.C. § 1030, et seq. 57. Plaintiff Facebook realleges and incorporates by reference, as if fully set forth herein, the allegations in all the preceding paragraphs. 26 27 28 58. Facebook's website and computers are protected computers as defined in 18 U.S.C. § 1030(e)(2)(B), because they are used in interstate or foreign commerce or communication. COMPLAINT -_\JLz 1 2 3 4 59. On information and belief, Defendants are accessing Facebook's protected computers without authorization, as detailed in Facebook's Terms of Use. On information and belief, Defendants "exceed[ed] authorized access" to Facebook, as defined in 18 U.S.C. 1030(e)(5), by accessing Facebook's protected computers with authorization and using that access 5 6 7 8 9 to obtain or alter information that they are not entitled to obtain or alter. 60. On information and belief, Defendants are intentionally accessing Facebook's computers without authorization, or exceeding authorized access, and obtaining information from Facebook's protected computers involving interstate or foreign communications in violation of 18 U.S.C. 1030(a)(2). 10 11 12 13 61. On information and belief, Defendants are knowingly, and with intent to defraud, accessing Facebook's protected computers without authorization or exceeding authorized access, and furthering their intentional fraud by obtaining more than $5,000 in value in violation of 18 U.S.C. 1030(a)(4). 14 15 16 17 62. On information and belief, Defendants are knowingly, and without authorization, accessing protected Facebook computers and causing the transmission of a programs, information, code, or commands that are intentionally causing damage and loss to Facebook of at least $5000 in a single year in violation of 18 U.S.C. 1030(a)(5)(A)(i). 18 19 20 21 22 63. On information and belief, Defendants are intentionally accessing Facebook's protected computers without authorization and recklessly causing damage and loss to Facebook of at least $5000 in a single year in violation of 18 U.S.C. 1030(a)(5)(A)(ii). 64. On information and belief, Defendants are intentionally accessing Facebook's protected computers without authorization and causing damage resulting in a loss to Facebook of 23 24 at least $5000 in a single year in violation of 18 U.S.C. 1030(a)(5)(A)(iii). 65. On information and belief, Defendants knowingly and with intent to defraud, are 25 26 27 28 trafficking in passwords or similar information, such as login information, through which a protected computer may be accessed without authorization affecting interstate commerce in violation of 18 U.S.C. 1030(a)(6). -Jl^ COMPLAINT 1 2 3 4 5 66. On information and belief, Defendants are, in addition to committing the above violations, attempting to commit the above offenses in violation of 18 U.S.C. 1030(b). 67. Facebook has suffered and continues to suffer damages and loss by Defendants' violations, including being forced to expend time and resources to investigate and prevent the unauthorized access and abuse of its computer network, and to protect its users against unsolicited 6 7 8 9 commercial electronic messages. Defendants' actions are also deterring Facebook's existing users and potential new users from using Facebook, and damaging Facebook's good will and reputation with its customers and the community at large. 68. Facebook brings this action pursuant to 18 U.S.C. § 1030(g) and seeks 10 11 compensatory and other equitable relief in an amount to be proven at trial. 69. Facebook has suffered and continues to suffer irreparable and incalculable harm 12 13 14 and injuries as a result of Defendants' violations. The harm will continue unless Defendants are enjoined from further unauthorized use of Facebook's protected computers. Facebook has no adequate remedy at law. 15 16 17 18 COUNT III - CALIFORNIA COMPREHENSIVE COMPUTER DATA ACCESS AND FRAUD ACT, CALIFORNIA PENAL CODE § 502(c) 70. Plaintiff Facebook realleges and incorporates by reference, as if fully set forth herein, the allegations contained in all the preceding paragraphs. 71. Facebook owns computers, computer systems, computer networks, computer 19 20 21 22 23 24 programs and proprietary data. 72. On information and belief, Defendants are knowingly accessing and without permission altering, damaging, deleting, destroying, or otherwise using Facebook's data, computers, computer systems or computer network to (1) devise or execute a scheme to defraud and deceive or (2) wrongfully control or obtain money, property, or data in violation of Cal. Penal Code § 502(c)(l). 25 73. On information and belief, Defendants are knowingly accessing and without 26 27 permission taking, copying, or using data from Facebook's computers, computer systems or computer network in violation of California Penal Code § 502(c)(2). 28 -13COMPLAINT 74. On information and belief, Defendants knowingly and without permission are using or causing to be used Facebook's computer services in violation of Cal. Penal Code 3 4 5 § 502(c)(3). 75. On information and belief, Defendants are knowingly accessing and without permission adding, altering, damaging, deleting, or destroying any data, computer software, or computer programs which reside or exist on Facebook's computers, computer systems or computer network in violation of Cal. Penal Code § 502(c)(4). 76. On information and belief, Defendants are knowingly and without permission disrupting or causing the disruption of Facebook's computer services in violation of 10 11 12 13 14 Cal. Penal Code § 502(c)(5). 77. On information and belief, Defendants are knowingly and without permission providing or assisting in providing a means of accessing Facebook's computers, computer system, or computer network in violation of this section in violation of Cal. Penal Code § 502(c)(6). 78. On information and belief, Defendants knowingly and without permission are 15 accessing or causing to be accessed Facebook's computers, computer systems, and/or computer network in violation of California Penal Code § 502(c)(7). 16 17 79. Facebook suffered and continues to suffer damage and loss as a result of 18 19 20 Defendants' violations identified above, including being forced to expend time and resources to investigate and prevent the unauthorized access and abuse of its computer network, and to protect its users against unsolicited commercial electronic messages. Defendants' actions are also 21 22 deterring Facebook's existing users and potential new users from using Facebook, and damaging Facebook's good will and reputation with its customers and the community at large. 23 80. Facebook brings this action pursuant to Cal. Penal Code § 502(e)(l) and seeks 24 25 compensatory damages, in an amount to be proven at trial, and injunctive or other equitable relief. 81. Facebook has suffered irreparable and incalculable harm and injuries from 26 27 28 Defendants' violations. The harm will continue unless Defendants are enjoined from further violations of this section. Facebook has no adequate remedy at law. -14COMPLA1NT 1 82. Facebook is entitled to punitive or exemplary damages pursuant to 2 3 4 5 Cal. Penal Code § 502(e)(4) because Defendants' violation were willful and, on information and belief, Defendants are guilty of oppression, fraud, or malice as defined in Cal. Civil Code § 3294. 83. Facebook is entitled to reasonable attorneys' fees as provided in Cal. Penal Code § 502(e)(2). 6 COUNT IV - CALIFORNIA ANTI-PHISHING ACT, CALIFORNIA BUSINESS AND PROFESSIONS CODE § 22948, et seq. 84. 8 9 10 11 Plaintiff Facebook realleges and incorporates by reference, as if fully set forth herein, the allegations in all the preceding paragraphs. 85. Facebook is engaged in the business of providing Internet access to the public, owns a web page and a trademark. 86. Facebook is adversely affected by Defendants' violations of California Business 12 13 14 and Professions Code § 22948, et seq. 87. On information and belief, Defendant, by means of a webpage, email or other use of the Internet, is soliciting, requesting, or taking action to induce another person to provide identifying information, including account passwords, by representing himself to be a business 15 16 17 18 19 20 21 without authority or approval in violation of Cal. Bus. & Prof. Code § 22948.2. 88. Facebook has suffered and continues to suffer damages and loss by Defendants' violations, including being forced to expend time and resources to investigate and prevent the unauthorized access and abuse of its computer network, and to protect its users against unsolicited commercial electronic messages. Defendants' actions are also deterring Facebook's existing users and potential new users from using Facebook, and damaging Facebook's good will and reputation with its customers and the community at large. 22 23 24 25 89. Facebook brings this action pursuant to Cal. Bus. & Prof. Code § 22948.3 and seeks the greater of actual damages or $500,000, in an amount to be proven at trial. 90. Facebook has suffered irreparable and incalculable harm and injuries from 26 27 28 Defendants' violations. The harm will continue unless Defendants are enjoined from further violations of this section. Facebook has no adequate remedy at law. -15COMPLAINT 1 PRAYER FOR RELIEF 2 3 4 5 6 WHEREFORE, plaintiff Facebook prays for the following relief:' A. For injunctive relief, as follows: A permanent injunction enjoining and restraining Defendants, and all persons or entities acting in concert with them during the pendency of this action and thereafter perpetually, from: 1. initiating or procuring transmission of unsolicited commercial electronic 7 8 messages on or through Facebook's computers, Facebook's website, Facebook's networks, or to Facebook users; 9 10 11 2. accessing or attempting to access Facebook's website, networks, data, information, user information, profiles, computers and/or computer systems; 12 13 14 15 3. soliciting, requesting, or taking any action to induce Facebook users to provide identifying information, or representing that such solicitation, request, or action is being done with Facebook's authorization or approval; 4. retaining any copies, electronic or otherwise, of any Facebook information, 1g 17 18 19 20 including login information and/or passwords, obtained through illegitimate and/or unlawful actions; 5. engaging in any activity that alters, damages, deletes, destroys, disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of Facebook's computer, computer system, computer 21 22 6. network, data, website or services; engaging in any unlawful activities alleged in this complaint; 23 24 25 7. entering or accessing any the physical premises or facilities of Facebook or its counsel; and 26 27 paragraph A at this time, as Facebook does not intend to interfere with the property of the bankruptcy l with regard to Defendant Scott Shaw, Facebook seeks only the injunctive relief described in estate and will not do so without leave of court. However, Facebook reserves the right to pursue the 28 remaining forms of relief from Defendant Shaw after first petitioning the U.S. Bankruptcy Court for the District of Nevada and obtaining leave to do so. -16COMPLAINT f 1 1 2 3 8. engaging in any activity that violates Facebook's Terms of Use and/or encouraging, inducing or facilitating violations of Facebook's Terms of Use by anyone; 4 B. An order requiring Defendants to account for, hold in constructive trust, pay over 5 6 7 to Facebook, and otherwise disgorge all profits derived by Defendants from their unlawful conduct and unjust enrichment, as permitted by law; C. An award to Facebook of damages, including but not limited to, compensatory, 8 9 statutory, exemplary, aggravated, and punitive damages, as permitted by law and in such amounts to be proven at trial; 10 11 12 13 14 15 D. E. F. An award to Facebook of reasonable costs, including reasonable attorneys' fees; For pre-and post-judgment interest as allowed by law; and For such other relief as the Court may deem just and proper. DATED: February 24,2009 PERKINS COIE llp 16 17 Attorneys for Plaintiff FACEBOOK, INC. 18 19 20 21 22 23 24 25 26 27 28 -17COMPLAINT 1 JURY DEMAND 2 3 4 Pursuant to Federal Rule of Civil Procedure 38(b), plaintiff demands a trial by jury as to all issues so triable in this action. 5 6 7 DATED: February 24,2009 PERKINS COIE llp 8 9 10 11 Attorneys for Plaintiff FACEBOOK, INC. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -18COMPLAINT EXfflBIT A Terms of Use I Facebook /#"\ z0^. Page 1 of 7 Terms of Use Date of last Revision'. September 23, 2008 Welcome to Facebook, a social utility that connects you with the people around you. The Facebook service and network (collectively, "Facebock" cr "the Service") are operated by Facebook, Inc. and its corporate affiliates (collectively, "us", "we" or "the Company"). By accessing or using our web site at www.faceboek.com or the mobile version thereof (together the "Site") or by posting a Share Button on your site, you (the "User") signify that you have read, understand and agree to be bound by these Terms of Use (Terms of Use* or "Agreement"), whether or not you are a registered member of Facebook. We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms of Use at any time without further notice. If we do this, we will post the changes to these Terms of Use on this page and will indicate at the top of this page the date these terms were last revised. Your continued use of the Service or the Site after any such changes constitutes your acceptance of the new Terms of Use. If you do not agree to abide by these or any future Terms of Use, do not use or access (or continue to use or access) the Service or the Site. It is your responsibility to regularly check the Site to determine if there have been changes to these Terms of Use and to review such changes. PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED. Eligibility Membership in the Service Is void where prohibited. This Site Is intended solety for users who are thirteen (13) years of age or older, and users of the Site under 18 who are currently in high school or college. Any registration by, use of or access to the Site by anyone under 13, or by anyone who is under 18 and not in high school or college, is unauthorized, unlicensed and In violation of these Terms of Use. By using the Service or the Ste, you represent and warrant that you are 13 or older and in high school or college, or else that you are 18 or older, and that you agree to and to abide by an cf the terms and conditions of this Agreement Registration Data; Account Security In consideration of your use of the Site, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site ("Registration Data"); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other Information you provide to Company, to keep it accurate, current and complete; and (d) be fully responsible for all use of your account and fcr any actions that take place using your account. Proprietary Rights in Site Content; Limited License AU content on the Site and available through the Service, including designs, text, graphics, pictures, video, information, applications, software, music, sound and other dies, and their selection and arrangement (the "Site Content"), are the proprietary property of the Company, its users or its licensors with all rights reserved. No Site Content may be modified, copied, distributed, framed, reproduced, repubUshed, downloaded, scraped, displayed, posted, transmitted, or sold In any form or by any means. In whole or in part, without the Company's prior written permission, except that the foregoing does not apply to your own User Content (as defined below) that you legally post on the Site. Provided that you are eligible fcr use of the Site, you are granted a limited license to access and use the Site and the Site Content and to download or print a copy of any portion of the Site Content to which you have properly gained access solery for your personal, non-commercial use, provided that you keep all copyright or other proprietary notices intact. Except for your own User Content, you may not upload cr republish Site Content on any Internet, Intranet or Extranet site or incorporate the Information In any other database or compilation, and any other use of the Site Content Is strictly prohibited. Such license Is subject to these Terms of Use and does not permit use of any data mining, robots, scraping or similar data gathering or extraction methods. Any use cf the Site or the Site Content other than as specifically authorized herein, without the prior written permission of Company, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time without notice and with or without cause. Trademarks 32665, FACEBOOK, THE FACEBOOK, FACEBOOKHIGH, FBOOK, POKE, THE WALL and other Company graphics, logos, designs, page headers, button icens, scripts and service names are registered trademarks, trademarks or trade dress cf Company in the U.S. and/or other countries. Company's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the pricr written permission of the Company. http://www.facebook.com/terms.php FXFflRTT A 2/23/2009 Terms of Use I Facebook ^ . ^ Page 2 of 7 User Conduct You understand that except lor aoVertising programs offered by us on the Site (e.g., Facebook Flyers, Facebook Marketplace), the Service and the Site are available for your personal, non-commercial use only. You represent, warrant and agree that no materials of any kind submitted through your account or otherwise posted, transmitted, or shared by you on or through the Service will violate or Infringe upon ttte rights of any third party, Induing copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain tsbebus, defamatory or otherwise unlawful material. In addition, you agree not to use the Service or the Site to: · harvest or collect email addresses or ether contact information of other users from the Service or the Site by electronic or other means for the purposes of sending unsolicited emails or other unsobdted · use the Service or the Sue in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site; · use automated scripts to collect Information from or otherwise Interact with the Service or the Site; · upload, post, transmit, share, store or otherwise make available any content that we deem to be harmful, threatening, unlawful, defamatory, infringing, abusrve, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or puttioty rights, hateful, or racially, ethnically or otherwise objectionable; · upload, post, transmit, share, store or otherwise make available any videosother than those of a personal nature that: (i) are of you or your friends, (li) are taken by you or your friends, or (til) are original art or animation created by you or your friends; · register for more than one User account, register for a User account on behalf of an individual ottter than yourself, or register for a User account on behalf of any group or entity; · impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity; communications; · upload, post, transmit, share or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, "Junk mall," ·spam," "chain letters," "pyramid schemes," or any other form of solicitation; · upload, post, transmit, share, store or otherwise make publicly available on the Site any private information of any third party, including, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers; · · sohot personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes; upload, post, transmit, share or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; intimidate or harass another; · · upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or Out would otherwise create liability or violate any local, state, national or international law; · use or attempt to use another's account, service or system without authorization from the Company, or create a false identity on the Service or the Site. · upload, post, transmit, share, store or otherwise make available content that In the sole Judgment of Company, is objectionable or which restricts or Inhibits any other person from using or enjoying the Site, or which may expose Company or its users to any harm or liaDiLty of any type. Without limiting any of the foregoing, you also agree to abide by our F.xcbcck CWe cf Conduct that provides further information regarding the authorized conduct of users on Facebook. User Content Posted on the Site You are solely responsible for the photos, profiles (Including your name, Image, and likeness), messages, notes, text, information, music, video, advertisements, listings, and other content that you upload, publish or display (hereinafter, "post") on or through the Service or the Site, or transmit to or share with other users (collectively the "User Content'). You may not post, transmit, or share User Content on the Site or Service that you did not create or that you do not have permission to post You understand and agree that the Company may, but is not obligated to, review the Site and may delete or remove (without notice) any Site Content or User Content in its sole discretion, for any reason or no reason, including User Content that in the sole Judgment of the Company violates this Agreement or the (·>· <:>-»·« Ccc.c <;i fondue:, or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users or others. You are solely responsible at your sole cost and expense for creating, backup copies and replacing any User Content you post or store on the Site or provide to the Company. When you post User Content to the Ste, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site. By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have trie right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fulry paid, worldwide license (with the right to sublicense) to use. copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or In part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or In connection with the Site or the promotion thereof, to prepare derivative works cf, or Incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing. You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content. Facebook does not assert any ownership over your User Content; rather, as between us and you, subject to ttte rights granted to us in these Terms, you retain full ownership of all of your user Content and any Intellectual property rights or other proprietary rights associated with your User Content. Facebook Mobile Services http://www.facebook.com/terms.php 2/23/2009 TermsofUse|Facebook (**\, /"""^ Page 3 of 7 The Service includes certain services that are available via your mobile phone, Including (i) the ability to upload content to Facebook via your mobile phone (Mobile Uploads), (li) the ability to receive and reply to Facebook messages, to poke and receive pokes and to write wall posts using tent messaging (Mobile Texts), (Hi) the ability to browse Facebook from your mobile phone (Mobile Web), and (Iv) the ability to access certain Facebook features through « mobile application you have downloaded and installed on your mobile phone (Mobile Client) (collectively the "Mobile Services'). We do not charge for these Mobile Services. However, your carrier's normal messaging, data and other rates and fees will still apply. You should check with your carrier to find out what plans are available and how much they cost. In addition, downloading, Installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you should check with your carrier to find out if the Mobie Services are available for your mobile devices, and what restrictions, if any, may be applicable to your use of such Mobile Services. By using the Mobile Services, you agree that we may communicate with you regarding Facebook and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you chance or deactivate your mobile telephone number, you agree to prompby update your Facebook account information to ensure that your messages are not sent to the person that acquires your old number. Copyright Complaints We respect the intellectual property rights of others and we prohibit users from uploading, posting or otherwise transmitting on the Facebook website or service any materials that violate another party's Intellectual property rights. When we receive proper Notification of Alleged Copyright Infringement as described In our f accbcok Copynght Policy, we promptly remove or disable access to the allegedly Infringing material and terminate the accounts of repeate infrtngers as described herein In accordance with the Digital Millenium Copyright Act If you believe that any material on the Site Infringes upon any copyright which you own or control, you may send a written notification of such infringement to our Designated Agent. Please see cur FaceDook. Copyright Policy for more information on how to report infringement of your copyright. Repeat Infringer Policy In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law. Company has adopted a policy of terminating, in appropriate circumstances and at Company's sole discretion, memben who are deemed to be repeat infringers. Company may also at its sole discretion limit access to the Site and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement. Third Party Websites and Content The Site contains (or you may be sent through the Site or the Service) links to other web sites ("Third Party Sites") as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, Information, applications, software and other content or Items belonging to or originating from third parties (the "Third Party Applications, Software or Content"). Such Third Party Sites and Third Party Applications, Software or Content are not Investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Parry Sites accessed through the Site or any Third Party Applications, Software or Content posted on, available through or Installed from the Site, Including the content, accuracy, offcnsiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content Inclusion of, linking to or permitting the use or installation of any Third Party Site or any Third Party Applications, Software or Content does not imply approval or endorsement thereof by us. If you decide to leave the Site and access the Third Party Sites or to use or install any Third Party Applications, Software or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies. Including privacy and data gathering practices, of any site to which you navigate from the Sue or relating to any applications you use or install from Die sue. Share Service Company offers a feature whereby users of the Site can share with others or post to their own member profile, videos, articles and other Third Party Applications, Software or Content from, and/or links to, Third Party Sites through the Service (the "Share Service"). You acknowledge and agree that your use of the Share Services and all links, User Content or Third Party Applications, Software or Content shared through the Share Service Is subject to, and will fully comply with the user conduct rules set forth above and the other terms and conditions set forth In these Terms of Use. Use of Share Links by Online Content Providers Subject to the terms and conditions of these Terms of Use, Third Party Sites that meet the requirements set forth below may place a Share link (as described below). In the form approved by Company, on pages of their web sites to facilitate use of the Share Service. A Third Party Site that posts a Share link on its web site is referred to herein as an "Online Content Provider" and shall abide and be subject to the applicable sections of these Terms of Use. A "Share link" is a button and/or a text link appearing on an Online Content Provider's web page that, upon being clicked by a user, enables us to launch a sharing mechanism through which users can share with others or post to their own member profile, (inks and content from that page. In the event that the Share link s a button that contains any icons or other graphic images, trademarks or other proprietary materials of the Company, Online Content Provider Is granted permission to use such images, trademarks or other materials solely for the purpose of placing the Share link on Online Content Provider's site and solely in the current form provided by the Company. In the event that the Share link is a text link, it mu« at any time with or without cause in its sole discretion, and upon such termination, Online Content Provider agrees to Immediately remove all Share links from IB site. Include the word "Facebook* as part of the link. The rights granted in this paragraph may be revoked by Company In order for an Online Content Provider to Include a Share Link on its pages, the Third Party Site must not contain http://www.facebook.com/terms.php 2/23/2009 Terms of Use I Facebook /**\ /**\ Page 4 of 7 any web content that if shared or posted by a user would be a violation of the user conduct rules set forth above. Without limiting the forgoing. Online Content Provider agrees not to post a Share link on any web site that contains, and represents and warrants that such web site does not and will not contain, any content that Is infringing, harmful, threatening, unlawful, defamatory, abusive, Inflammatory, harassing, vulgar, obscene, lewd, fraudulent, or Invasive of privacy or publicity rights or that may expose Company or Its users to any harm or liability of any type. Upon including of a Share Link, Online Content Provider agrees to defend, Indemnify and hold ttie Company, Its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney's fees, arising out of or In connection with such Share Link, any links, content or other items or materials which may be shared or posted through such Share Link, or any breach or alleged breach of the foregoing representations and warranties. By Including a Share Link, Online Content Provider automatically grants, and represents and wan-ants that it has the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with me right to subttcense) to use the Share Service in order to link to, use, copy, publish, stream, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part), summarize, and distribute the content, links and other materials of any kind residing on any web pages on which Online Content Provider places the Share Link. Facebook Marketplace All listings posted on or through the Facebook Marketplace service and all transactions conducted In connection therewith are subject to and governed by the facebook Marketplace doinn (the "Guidelines") as well as these Terms of Use. When you use Facebook Marketplace in any manner you are agreeing to abide by and be subject to the Guidelines and the other applicable rules set forth in these Terms of Use. The Guidelines are subject to change without prior notice at any time, in the Company's sole discretion, so you should review the Guidelines each time you use Facebook Marketplace. Parties to a transaction are solely responsible for all interactions with each other, for arranging for payment and the exchange of the goods or services purchased if applicable, and (or the results and performance of any transaction or relationship entered into through Facebook Marketplace. You acknowledge that Facebook Is not responsible or liable for any action or inaction of any party to a transaction, for any failure to perform, to pay any amounts due, or to deliver any merchandise or services as promised, or for any other aspect of the transaction. Any fees or payments collected by Facebook applicable to Facebook Marketplace are set forth on the Site, and ail terms and conditions applicable to such fees are set forth in the Faceucok Terms of Sale However, please note that the Terms of Sale do not apply to your purchases of products or services from third parties through Facebook Marketplace, as those transactions are strictly between you and the other party to the transaction. ALL USE OF FACEBOOK MARKETPLACE IS PROVIDED "AS IS" AND AT YOUR OWN RISK. Facebook Platform Applications The Facebook Platform is a set of APb and services provided by Facebook that enable third-party developers ('Platform Developers") to create websites and applications that retrieve data made available by Facebook and its users anoyor that retrieve authorized data from third-party sites for use on the Facebook Site ("Platform Applications") Platform Developers may use the Facebook Platform and create Platform Applications only In accordance with the terms and conditions set forth in an agreement entered into between Facebook and the Platform Developer ("Developer Terms"). Our standard Developer Terms consist of the Faceoook Developer Terms of Service and the related Facebook Platlc:m Application Guidelines. We may from time to time enter Into separate agreements with certain third party Platform Developers that contain different or additional terms, provided however, that each such separate agreement will require the third party Platform Developer to only display your information in accordance with your Facebook privacy «-n"n. The standard Developer Terms are subject to change without prior notice at any time, in the Company's sole discretion, so you should review these documents from time to time. ALL USE OF THE FACEBOOK PLATFORM IS PROVIDED "AS IS" AND AT YOUR OWN RISK. Users who install Platform Applications must agree to the terms and conditions set forth In the Pm:fonr Applicator Tons cf Use ("Application User Terms") and In these Terms of Use. The Application User Terms are subject to change without prior notice at any time, in the Company's sole discretion, so you should review these terms each time you install an application and from time to time. Platform Developers may require you to agree to their own terms cf service, privacy policies and/or other policies as a condition of using Platform Applications. Platform Applications have not been approved, endorsed, or reviewed in any manner by Facebook, and we are not responsible for your use of or inability to use any Platform Applications, including the content accuracy, or reliability of such Application and the privacy practices or other policies of Developers. YOU USE SUCH PLATFORM APPLICATIONS AT YOUR OWN RISK. If you, your friends or members cf your network use any Platform Applications, such Platform Applications may access and share certain information about you with others in accordance with your privacy settings as further described in our Privacy Policy. Platform Developers are required to agree to restrictions on access, storage and use of such information. However, while we have undertaken contractual and technical steps to restrict possible misuse of such information by such Platform Developers, we do not screen or approve Developers, and we cannot and do not guarantee that all Platform Developers will abide by such restrictions and agreements. Certain actions you take through the Platfoim Applications may be displayed to your friends in your profile, mini-feed and news feed, and you may opt-out of displaying your Platform Application actions on the Privacy Settings page. Please report any suspected misuse of information through the Facebook Platform as described In our Privacy Policy. You may set your preferences for your news feed and mini-feed "ere. Facebook Connect Facebook Connect ("Connect") enables participating third party websites to work Just like Facebook Platform applications. Once you allow a third party website to connect with Facebook, you will be able to use your Facebook login information to log into that website. The third party website will be able to: generate and publish news feed and other stories about actions you take on their website; access Facebook information related to you (including your profile information, friends, and privacy settings) so you can use your Facebook Information on the third party site; and allow you to Interact with your friends on the website. In order to make Connect possible. http://www.facebook.com/terms.php 2/23/2009 Terms of Use | Facebook /^\ s0*^ Page 5 of 7 you agree to allow Facebook to check your Facebook cookies when you are visiting participating third party websites, and alow Facebook to receive information concerning the actions you take on those third party websites. In addSon. once you allow a participating third party website to connect with Facebook, you agree to allow Facebook and such third party website to generate and publish news feed and other stories about actions you take on the website without any additional permission. In the event you no longer want the third party website to publish stories about you, you can always disable this feature by changing your application sellings. When your friends connect their Facebook account with a participating third party website, Facebook Connect will enable them to find Facebook friends that may also be users of that third party website, and Invite them to use Connect as well. If you do not want your friends to be able to Invite you, you may change your an .-.icy settings to disable this feature. Connect also gives you the ability to permit Facebook and participating thud party websites to generate and publish news feed and other stories about actions you have taken on such websites, even if you have not gone through the Connect process. In such cases, you will be asked whether you want to publish the story on Facebook, and will be given the opportunity to save your answer for future stories. In the event you want to change your settings for that website, visit your application settings. like Platform Applications, third party websites that participate In Connect are required, among other things, to protect your privacy consistent with your Facebook privacy settings and Facebook's pnvcicv polcv. Facebook Pages Facebook Pages are special profiles used solely for commercial, political, or charitable purposes. You may not set up a Facebook Page on behalf of another Individual or entity unless you are authorized to do so. This includes fan Facebook Pages, as well as Facebook Pages to support or criticize another individual or entity. FACEBOOK DOES NOT PRE-SCREEN Oft APPROVE FACEBOOK PAGES. AND CANNOT GUARANTEE THAT A FACEBOOK