Miller v. Facebook, Inc. et al

Filing 136

MOTION for Default Judgment as to Yao Wei Yeo filed by Daniel M. Miller. (Attachments: # 1 Affidavit Declaration of Brian D. Hancock in Support of Motion for Default Judgment Against Defendant Yao Wei Yeo, # 2 Affidavit Declaration of Bradley Green, # 3 Affidavit Declaration of Robert Kajikami, # 4 Exhibit 1 (Second Amended Complaint), # 5 Exhibit 2 (Proof of Service), # 6 Exhibit 3 (Entry of Default), # 7 Proposed Order Proposed Order Granting Plaintiff's Motion for Default Judgment, # 8 Proposed Order Proposed Order Pursuant to Entry of Default Judgment)(Hancock, Brian) (Filed on 4/12/2011)

Case3:10-cv-00264-WHA Document58

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D. GILL SPERLEIN (172887)
THE LAW OFFICE OF D. GILL SPERLEIN
584 Castro Street, Suite 879
San Francisco, California 94114
Telephone: [phone]
Facsimile: [phone]
[e-mail]
DOUGLAS L. BRIDGES (pro hac vice)
HENINGER GARRISON DAVIS, LLC
1 Glenlake Parkway, Suite 700
Atlanta, Georgia 30328
Telephone: [phone]
Facsimile: [phone]
[e-mail]
BRIAN D. HANCOCK (pro hac vice)
HENINGER GARRISON DAVIS, LLC
2224 1st Avenue North
Birmingham, Alabama 35203
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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Attorneys for Plaintiff,
DANIEL M. MILLER

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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DANIEL M. MILLER,
Plaintiff,
vs.
FACEBOOK, INC. and YAO WEI
YEO,
Defendants.

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) CASE NO.: CV-10-264 (WHA)
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) SECOND AMENDED COMPLAINT
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PLAINTIFF’S SECOND AMENDED COMPLAINT
CV-10-264 (WHA)

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SECOND AMENDED COMPLAINT

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Plaintiff Daniel M. Miller (“Plaintiff”), for its complaint against Defendants

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Facebook, Inc. (“Facebook”) and Yao Wei Yeo (“Yeo”, collectively with Facebook as

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“Defendants”), hereby demands a jury trial and alleges as follows:
THE PARTIES

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1.

Plaintiff, Daniel M. Miller, is an individual residing at 2079 Kinsmon Drive,

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Marietta, Georgia 30062.
2.

On information and belief, Defendant Facebook, Inc. is a corporation

organized and existing under the laws of Delaware with its principal place of business at

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1601 S. California Avenue, Palo Alto, California 94304.
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3.

Upon information and belief, Defendant Yeo is an individual with unknown

address that was not ascertainable after reasonable diligence.

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JURISDICTION AND VENUE
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4.

This action arises under the Laws of the United States, 17 U.S.C. § 1 et seq.,

including 17 U.S. § 501.
5.

This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331,

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1332(a)(1), 1367 and 1338(a).
6.

Venue is proper in this judicial district pursuant to 28 U.S.C. § 1400(b) and

28 U.S.C. § 1391(b) and (c).

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7.

On information and belief, Defendant Facebook is subject to personal

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jurisdiction in this district by virtue of, among other things, doing business and committing

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acts of infringement in this State, including in this judicial district, through agents and
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representatives and/or otherwise having substantial contacts with this State and this
judicial district.
8.

On information and belief Defendant Yeo is subject to personal jurisdiction

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in this district by virtue of, among other things, committing acts of infringement in this

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State, including in this judicial district, as well as trying to specifically hide evidence of his

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infringement from specific residents of Georgia.

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FACTUAL BACKGROUND

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9.

In early 2007, Plaintiff authored the video game Boomshine.

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10.

Boomshine is a game played on the Internet using Adobe Flash ™

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technology where players click on a floating circle that causes the clicked circle to expand
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and causes other contacted floating circles to likewise expand in a chain reaction.
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Boomshine was published by Plaintiff on the Internet on the website

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K2xl.com starting on March 9, 2007.
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12.

Plaintiff was duly and lawfully granted a copyright registration on

Boomshine by the United States Copyright Office with registration number
TX0007089855.

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13.

Defendant Yeo does business as Zwigglers Apps on the websites

www.facebook.com/zwigglers and www.zwigglers.com.
14.

At least as early as April, 2009, Defendant Yeo published the game

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ChainRxn on a website hosted by Defendant Facebook.

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ChainRxn is a game played on the Internet using Adobe Flash™ technology

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

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The ChainRxn game was created and published utilizing the Facebook

Developer Platform.
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When the ChainRxn game was initially published on Facebook until

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sometime after the initial filing of this action on October 9, 2009, users would access the

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game by navigating from a link at www.facebook.com/zwigglers.

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This link would take

the user to a Facebook webpage called the ChainRxn canvas page.

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The ChainRxn canvas page was a webpage sent from Facebook that provided

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information related to ChainRxn, advertisements from Facebook, and an embedded iFrame

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in the users’ browser. The Facebook canvas iFrame caused the users’ browser to retrieve

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information from a website designated by Defendant Yeo while making it appear to the
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user that the user was receiving information hosted on, or provided by, the Facebook

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website.

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19.

Defendant Yeo designed the ChainRxn application to interface with the

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Facebook social network. When a user would access the ChainRxn canvas page, the

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ChainRxn application along with the information contained on the ChainRxn canvas page,

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such as the embedded Facebook iFrame, advertisements from Facebook, and information

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related to ChainRxn, would be downloaded to the users’ computer’s cache. In this manner,

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the ChainRxn application, while not “hosted” on Facebook’s servers, routinely drew

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information from Facebook’s servers and was distributed to each user who accessed the
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ChainRxn canvas page by way of the Facebook network. When a user played ChainRxn,

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this fact, along with information such as high scores and invitations to play ChainRxn,

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would be disseminated to the user’s “Friend” network by way of Facebook’s servers. This

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interfacing between the ChainRxn application and Facebook’s servers was essential in
generating interest in ChainRxn and distributing ChainRxn to Facebook’s large user base.
Facebook thereby facilitated access to the ChainRxn application significantly magnifying

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the effects of Defendant Yeo’s direct infringement of the Plaintiff’s copyright in
Boomshine.

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20.

Defendant Yeo unlawfully copied Boomshine by (1) improperly accessing

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and decompiling the Boomshine source code with a decompiling program, or by viewing
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the Boomshine application via the K2xl.com web site, and (2) then reproducing the

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Boomshine source code from the original decompiled source code, or by authoring, from

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the “look and feel” of the Boomshine application available on the K2xl.com web site, a

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source code designed and intended to result in the ChainRxn application that is

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substantially similar to Boomshine in its structure, sequence, organization, and/or user

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interface.

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Upon information and belief, Defendant Yeo agreed to the Facebook

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Statement of Rights and Responsibilities that provides Facebook the right to remove access

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to content through Facebook if that content infringes other people’s intellectual property

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rights.
22.

Upon information and belief, Defendant Yeo agreed to the Facebook

Statement of Rights and Responsibilities that provides Facebook the right to disable
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Defendant Yeo’s account for continued infringement of third-party intellectual property
rights.
23.

Defendant Facebook published ChainRxn in their Application Directory

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which allows every Facebook user to search and view the application from within the

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directory.

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24.

Defendant Facebook took the affirmative step to approve ChainRxn for

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publication on its Application Directory.
25.

ChainRxn copies the look and feel of Boomshine by incorporating almost

every visual element of the game.

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26.

After Defendant Yeo published ChainRxn on Defendant Facebook’s website,

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members of the public were deceived regarding the origin of ChainRxn.
27.

Because of the ability to access ChainRxn through Facebook and the

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inclusion of ChainRxn on the Facebook application directory, Defendant Yeo was assisted
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in his ability to distribute infringing copies of the ChainRxn game to Facebook users across

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the United States and the world.

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28.

Defendant Facebook provides advertisements on the webpage that hosts the

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ChainRxn game.

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29.

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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

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it violates Plaintiff’s copyrighted Boomshine.
30.

The letter to Defendant Facebook provided Facebook specific knowledge

about the infringement of Plaintiff’s copyright by the ChainRxn game.
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31.

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On May 7, 2009, Plaintiff sent a letter to Defendant Yeo (attached hereto as

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Exhibit B) demanding that Defendant Yeo remove ChainRxn from the Facebook website

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because ChainRxn violates Plaintiff’s copyrighted Boomshine.

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32.

Upon information and belief, after Defendant Yeo received the letter from

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Plaintiff demanding that he remove ChainRxn from the Facebook website, Defendant Yeo

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modified ChainRxn to prevent Plaintiff or anyone listing Plaintiff as his “friend” on the

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Facebook website from accessing or viewing ChainRxn.
33.

Despite the demands by Plaintiff that Defendants remove ChainRxn from the

Facebook website, they have refused to do so.

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34.

Facebook could have simply prevented further infringement of Plaintiff’s

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copyrights by removing end users’ access to ChainRxn by disabling the Facebook account
of Yeo and removing ChainRxn from the Facebook application directory.

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COUNT ONE
Copyright Infringement by Defendant Yeo

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35.

Plaintiff repeats and incorporates herein the entirety of the allegations

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contained in Paragraphs 1 though 32 above.
36.

Without authorization, Defendant Yeo reproduced and distributed the

program ChainRxn, which infringes the copyright of the following Plaintiff-owned and

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copyrighted work by copying its look and feel: Boomshine, U.S. Copyright Registration
TX0007089855.
37.

Plaintiff did not authorize Defendant Yeo’s copying, display or distribution

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of infringing copies of his work.
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38.

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Defendant Yeo knew that ChainRxn infringed Plaintiff’s Boomshine

copyright and that he did not have permission to exploit Plaintiff’s work.

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39.

Defendant Yeo knew his acts constituted copyright infringement.

40.

Defendant Yeo’s conduct was willful within the meaning of the Copyright

41.

As a result of his wrongful conduct, Defendant Yeo is liable to Plaintiff for

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Act.

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copyright infringement pursuant to 17 U.S.C. § 501. Plaintiff has suffered, and will

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continue to suffer, substantial losses, including, but not limited to, damage to his business

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reputation and goodwill.

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42.

Plaintiff is entitled to recover damages, which include his losses and any and

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all profits Defendant Yeo has made as a result of his wrongful conduct.
COUNT TWO
(Contributory Copyright Infringement as to Defendant FaceBook, Inc.)
43.

Plaintiff repeats and incorporates by this reference each and every allegation

set forth in paragraphs 1 through 40, inclusive.

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44.

Without authorization, Yao Wei Yeo reproduced, distributed and publicly

displayed Plaintiff’s work by and through the Facebook.com, directly infringing Plaintiff’s
copyrighted work.

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45.

Defendant Facebook, Inc. contributed to Yeo’s infringing acts. Without

authorization, Defendant Facebook induced and encouraged the infringement of the
Boomshine work by refusing to remove access to ChainRxn from Facebook after receiving

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specific notice of its infringement of the copyright in Boomshine and by providing a
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national and worldwide distribution channel of the ChainRxn game despite simple
measures that could be taken to prevent the distribution of ChainRxn through Facebook.

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46.

Defendant Facebook, Inc. was aware of the infringing activity or was

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willfully blind to the infringing activity.
47.

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Defendant Facebook, Inc. allowed and encouraged Yeo to reproduce,

distribute and publicly display Plaintiff’s work by and through the Facebook.com.

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48.

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Defendant Facebook, Inc. materially contributed to the infringement by

providing the location and tools used for the infringing activity as described herein.

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49.

The acts and conduct of Facebook, Inc., as alleged above in this Second

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Amended Complaint constitute contributory copyright infringement.
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50.

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As a result of its wrongful conduct, Defendant Facebook, Inc. is

contributorily liable to Plaintiff for copyright infringement pursuant to 17 U.S.C. § 501 and

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interpreting case law. Plaintiff has suffered, and will continue to suffer, substantial losses,
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including, but not limited to, damage to his business reputation and goodwill.

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51.

Plaintiff is entitled to recover damages, which include his losses and any and

all profits Defendant Facebook, Inc. has made as a result of its wrongful conduct.

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PRAYER

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WHEREFORE, Plaintiff prays for a judgment against Defendants on all counts as
follows:

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A.

That this Court enter permanent injunctive relief enjoining and

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retraining Defendant Facebook, Inc. its officers, directors, employees, agents, licensees,

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servants, successors, and assigns, and any and all persons in active concert or

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participation with any of them, from the manufacture, publication, display, distribution,

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advertising of, sale, or offer for sale of ChainRxn and any other work which infringes

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Plaintiff’s copyrights in Boomshine;

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B.

That this Court enter permanent injunctive relief enjoining and

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restraining Defendant Yeo, his agents, licensees, servants, successors, and assigns, and

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any and all persons in active concert or participation with any of them, from the

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manufacture, publication, display, distribution, advertising of, sale, or offer for sale of
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ChainRxn and any other work which infringes Plaintiff’s copyrights in Boomshine;
C.

That this Court enter an order adjudging that Defendants have

willfully infringed upon Plaintiff’s copyrights in and to Boomshine;

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D.

That this Court require Defendants to disgorge and to account to

Plaintiff for any and all profits derived by Defendants from the manufacture, production,
publication, distribution, advertisement, sale, transfer or other exploitation of the game

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ChainRxn and any other work which infringes Plaintiff’s copyrights in Boomshine;
E.

That this Court award Plaintiff damages against Defendants in an

amount to be determined at Trial;
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F.

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That this Court grants such other and further relief as it shall deem

just and proper, including interest and the costs and disbursements of this action.
PLAINTIFF DEMANDS A TRIAL BY JURY.

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s/ Brian D. Hancock
BRIAN D. HANCOCK (pro hac vice)
HENINGER GARRISON DAVIS, LLC
2224 1st Avenue North
Birmingham, Alabama, 35203
Telephone: [phone]
Facsimile: [phone]

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DOUGLAS L. BRIDGES (pro hac vice)
HENINGER GARRISON DAVIS, LLC
1 Glenlake Parkway, Suite 700
Atlanta, Georgia 30328
Telephone: [phone]
Facsimile: 678-638-6142
Email: [e-mail]

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D. GILL SPERLEIN
THE LAW OFFICE OF D. GILL SPERLEIN
584 Castro Street, Suite 879
San Francisco, CA 94114
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

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ATTORNEYS FOR PLAINTIFF

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