Miller v. Facebook, Inc. et al

Filing 1

COMPLAINT for Copyright Infringement (Summons Issued); Jury Demand filed by Daniel M. Miller; and Summon(s) issued. Consent form to proceed before U.S. Magistrate and pretrial instructions provided. ( Filing fee $ 350.00 receipt number 17178.) (Attachments: # 1 Summons, # 2 Civil Cover Sheet)(eop) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. Modified on 1/22/2010 (bw, COURT STAFF).

Miller v. Facebook, Inc. et al

Doc. 1

Case3:10-cv-00264-WHA Document1

Filed10/09/09 Page1 of 11

FILED IN CLERK'S OFFICE
u, S, D , C. - Atlanta

FOR THE NORTHERN DISTRICT OF GEOR ~~y ATLANTA DIVI SION DANIEL M . MILLER Plaintiff, V.

OCT 0 9 2009 IN THE UNITED STATES DISTRICT COU pn ply'

4

Zk -W

C 11 iNc COMPLAINT FOR COPYRIGHT INFRINGEMENT DEMAND FOR JURY TRIAL

L91cv- 2810 0

11~r~ ~ T V

FACEBOOK, INC . ; and YAO WEI YEO Defendants .

COMPLAINT Plaintiff Daniel M . Miller ("Plaintiff'), for its complaint against Defendants
Facebook, Inc . ("Facebook") and Yao Wei Yeo ("Yeo", collectively with Facebook as "Defendants"), hereby demands a jury trial and alleges as follows :

THE PARTIES 1 . Plaintiff Daniel M . Miller, is an individual residing at 2079 Kinsmon
Drive, Marietta, Georgia 30062.

2 . Upon information and belief, Defendant Facebook, Inc . is a
corporation organized and existing under the laws of Delaware with its principal place of business at 1601 S . California Avenue, Palo Alto, CA 94304 .

P age 1 Dockets.Justia.com

Case3:10-cv-00264-WHA Document1

Filed10/09/09 Page2 of 11

3 . Upon information and belief, Defendant Yao is an individual with

unknown address that was not ascertainable after reasonable diligence .
JURISDICTION AND VENUE

4 . This action arises under the Laws of the United States, 17 U .S .C . § I
, including 17 U.S .C . §§ 501 and 15 U .S .C . § I et sect including 15 U .S .C . et .sea

§§ 1125(a).
5 . This action also arises under the Laws of Georgia, § 10-1-370 to 407 .

6 . This Court has jurisdiction over this action pursuant to 28 U .S .C . §§ 1 331, 1332(a)(1), 1367 and 1338(a) .
7 . Venue is proper in this judicial district pursuant to 28 U .S .C . §

1400(b) and 28 U .S .C . § 1391(b) and (c). 8. Upon information and belief, Defendant Facebook is subject to

personal jurisdiction in this district by virtue of, among other things, doing business and committing acts of infringement in this State, including in this judicial district, through agents and representatives and/or otherwise having

substantial contacts with this State and this judicial district . 9 . Upon information and belief Defendant Yeo is subject to personal
jurisdiction in this district by virtue of, among other things, committing acts of

Page 2

Case3:10-cv-00264-WHA Document1

Filed10/09/09 Page3 of 11

infringement in this State, including in this judicial district, as well as trying to

specifically hide evidence of his infringement from specific residents of Georgia .
FACTUAL B ACKGRO UN D

10 . In early 2007, Plaintiff authored the video game Boomshine .
11 . Boomshine is a game played on the Internet using Adobe Flash TM

technology where players click on a floating circle that causes the clicked circle to expand and causes other contacted floating circles to likewise expand in a chain
reaction .

12 . Boomshine was published by Plaintiff on the Internet on the website K2xl .com starting on March 9, 2007 .

13 . Plaintiff has filed a registration for a copyright in Boomshine with the
United States Copyright Office . 14 . Defendant Yeo does business as Zwigglers Apps on the websites www.facebook .com/zwigglers and www .zwigglers .com . 15 . At least as early as April, 2009, Defendant Yeo published the game ChainRxn on a website hosted by Defendant Facebook. 16 . ChainRxn is a game played on the Internet using Adobe FlashTM

technology where players click on a floating circle that causes the clicked circle to

Page 3

Case3:10-cv-00264-WHA Document1

Filed10/09/09 Page4 of 11

expand and causes other contacted floating circles to likewise expand in a chain reaction .

17 . ChainRxn copies the look and feel of Boorrzshine by incorporating
almost every visual element of the game . 18 . After Defendant Yeo published ChainRxn on Defendant Facebook's

website, members of the public were deceived regarding the origin of ChainRxn . 19 . Defendant Facebook provides advertisements on the webpage that
hosts the ChainRxn game .

20 . On May 7, 2009, Plaintiff sent a letter to Defendant Facebook (attached hereto as Exhibit A) demanding that Facebook remove ChainRxn from its website because it violates Plaintiff's copyrighted Boomshine . 21 . On May 11, 2009, Plaintiff sent a letter to Defendant Yeo (attached
hereto as Exhibit B) demanding that Defendant Yeo remove ChainRxn from the Facebook website because ChainRxn violates Plaintiff's copyrighted Boomshine . 22 . Upon information and belief, after Defendant Yeo received the letter

from Plaintiff demanding that he remove ChainRxn from the Facebook website,
Defendant Yeo modified ChainRxn to prevent Plaintiff or anyone listing Plaintiff

as his "friend" on the Facebook website from accessing or viewing ChainRxn .

Page 4

Case3:10-cv-00264-WHA Document1

Filed10/09/09 Page5 of 11

23 . Despite the demands by Plaintiff that Defendants remove ChainRxn from the Facebook website, they have refused to do so .

COUNT ONE
Copy right Infringement of the b y Defendants

24 . Plaintiff repeats and incorporates here in the entirety of the allegations
contained in paragraphs 1 though 22 above .

25 . Without authorization, Defendant Facebook reproduced and distributed the program ChainRxn, which infringes the copyright of the following Plaintiff owned and copyrighted work by copying its look and feel : Boomshine,
U .S . Copyright Registration pending.

26 . Without authorization, Defendant Yeo reproduced and distributed the
program ChainRxn, which infringes the copyright of the following Plaintiff owned and copyrighted work by copying its look and feel : Boomshine, U .S . Copyright Registration pending.

27 . Plaintiff did not authorize Defendants' copying, display or distribution
of infringing copies of his work . 28 . Defendants knew that ChainRxn infringed Plaintiff's Boomshine copyright and that they did not have permission to exploit Plaintiff s works .

Page 5

Case3:10-cv-00264-WHA Document1

Filed10/09/09 Page6 of 11

29 . Defendants knew that their acts constituted copyright infringement . 30 . Defendants' conduct was willful within the meaning of the Copyright Act.

31 . As a result of their wrongful conduct, Defendants are liable to Plaintiff for copyright infringement pursuant to 17 U .S .C . § 501 . Plaintiff has
suffered, and will continue to suffer, substantial losses, including but not limited to damage to his business reputation and goodwill . 32 . Plaintiff is entitled to recover damages, which include his losses and

any and all profits Defendants have made as a result of their wrongful conduct .
COUNT TWO Violation of the Lanham Act by the Defendants

33 . Plaintiff repeats and incorporates here in the entirety of the allegations
contained in paragraphs 1 though 31 above .

34 . The acts and conduct of Defendants, as set forth hereinabove, is likely
to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of Defendants with Plaintiff, or as to the origin, sponsorship, or approval of ChainRxn by P lai ntiff. 35 . Plaintiff did not authorize Defendants' copying, display or distribution of ChainRxn.

Page 6

Case3:10-cv-00264-WHA Document1

Filed10/09/09 Page7 of 11

36 . The acts and conduct of the Defendants, as set forth hereinabove,
violate the Lanham Act, 15 U .S .C . §1125(a)(1)(A) . 37 . As a direct and proximate result of Defendants' violations of the

Lanham Act, Plaintiff has been irreparable damaged and wi l l continue to be
damaged in the future if said acts are allowed to continue .

38 . Plaintiff is likely to be damaged by the actions of Defendants and is
entitled to injunctive relief based upon the principles of equity and the provisions of 15 U .S .C . § 1116 and on terms that the court considers reasonable. Further, Plaintiff is entitled to recover attorney fees pursuant to 15 U .S .C . §1117(a). COUNT T HREE Violation of the Georgia Uniform Deceptive Trade Practices Act by the D efenda n ts 39 . Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 38 of the complaint as if set forth in full herein . 40 . The aforesaid acts and conduct of Defendants constitute, and unless enjoined will continue to constitute, unfair competition and unfair trade practices

against Plaintiff in violation of the Georgia Uniform Deceptive Trade Practices Act, O.C.G. §§ 10-1-370 et seq.

Page 7

Case3:10-cv-00264-WHA Document1

Filed10/09/09 Page8 of 11

41 . Plaintiff has suffered damages as a result of Defendants' unlawful acts

and, unless Defendant is restrained and enjoined, will continue to suffer immediate
and irreparable harm and Plaintiff is without an adequate remedy at law .

WHE REF OR E, Plaintiff prays for a judgment against Defendants on all counts as follows : A . That this Court enter permanent injunctive relief enjoining and retrai ning Defendant Facebook, it s officers , directors , employees ,

agents, licensees, servants, successors, and assigns, and any and all
persons in active concert or participation with any of them, from the manufacture, publication, display, distribution, advertising of, sale, or offer for sale of ChainRxn and any other work which infringes Plaintiff's copyrights in Boomshine ; B . That this Court enter permanent injunctive relief enjoining and retraining Defendant Yeo, his agents, licensees, servants, successors, and assigns, and any and all persons in active concert or participation with any of them, from the manufacture, publication, display, distribution, advertising of, sale, or offer for sale of ChainRxn and any other work which infringes Plaintiff's copyrights in Boomshine ;

Page 8

Case3:10-cv-00264-WHA Document1

Filed10/09/09 Page9 of 11

C . That this Court enter an order adjudging that Defendants have willfully infringed upon Plaintiff's copyrights in and to Boomshine ;
D . That this Court enter an order adjudging that Defendants' activities have violated Section 43(a) of the Lanham Act, 15 U .S .C . § 1125(a) ; E . That this Court enter an order adjudging that Defendants' activities have violated Georgia's Uniform and Deceptive Trade Practices Act,

O .C .G . § 10-1-370, et seq. ;
F . That this Court require Defendants to disgorge and to account to Plaintiff for any and all profits derived by Defendants from the

manufacture, production, publication, distribution, advertisement, sale, transfer or other exploitation of the game ChainRxn ;
G . That this Court award Plaintiff damages against Defendants in an

amount to be determined at Trial ; H . That this Court award treble damages pursuant to 15 U .S .C . § 1117(a) ;
I . That Plaintiff be awarded his reasonable attorneys fees and costs under the Lanham Act against Defendant ; J . That this Court grants such other and further relief as it shall deem just and proper, including interest and the costs and disbursements of

this action .

Page 9

Case3:10-cv-00264-WHA Document1

Filed10/09/09 Page10 of 11

PLAINTIFF DEMANDS A TRIAL BY JURY .

Page 10

Case3:10-cv-00264-WHA Document1

Filed10/09/09 Page11 of 11

Dated : October 9, 2009 Respectfully submitted,
s/ D ouglas L . B ridges D o uglas L . B ridges (080889) dbrid -ges(a,hgdlawfi rm . com HENINGER GARRISON DAMS

L Glenlake Parkway, Suite 700 Atlanta, Georgia 30328 Tel : [phone] Fax : [phone]

s l Brian Hancock Brian D . Hancock AL Bar No . : ASB -0874-B695H TN Bar No . : 022827 bdhancock@hgdlawfirm .com HENINGER GARRISON DAMS 2224 - 1st Avenue North Birmingham, AL 35203 Tel : [phone]

Fax : [phone] Attorneys for Plaintiff

Page 11