Miller v. Facebook, Inc. et al

Filing 143

Declaration of Andrew P. Holland in Support of 141 Motion to Set Aside Default filed by Yao Wei Yeo. (Gerrish, Stephen) (Filed on 5/5/2011) Modified on 5/6/2011 (wsn, COURT STAFF).

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Stephen C. Gerrish/Bar No. 061253
[e-mail]
Andrew P. Holland/Bar No. 224737
[e-mail]
THOITS, LOVE, HERSHBERGER & McLEAN
A Professional Law Corporation
285 Hamilton Avenue, Suite 300
Palo Alto, California 94301
Telephone: [phone]
Facsimile:
[phone]
Attorneys for Defendant
Yao Wei Yeo

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

A PROFESSIONAL LAW CORPORATION

11
285 Hamilton Avenue, Suite 300
PALO ALTO, CALIFORNIA 94301
[phone]

THOITS, LOVE, HERSHBERGER & McLEAN

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SAN FRANCISCO DIVISION

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DANIEL M. MILLER,
Plaintiff,

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v.

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FACEBOOK, INC. and YAO WEI
YEO,

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Defendants.

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DECLARATION OF ANDREW P.
HOLLAND IN SUPPORT OF MOTION
TO SET ASIDE DEFAULT OF
DEFENDANT YAO WEI YEO
Date: June 9, 2011
Time: 8:00 a.m.
Courtroom: 9, 19th Floor
Judge: Hon. William Alsup

I, Andrew P. Holland, declare as follows:

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No. 3:10-CV-00264 (WHA)

I am an attorney at law, duly licensed to practice before this court and all courts of

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the State of California, and am a shareholder with the law firm of Thoits, Love, Hershberger &

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McLean, attorneys for defendant Yao Wei Yeo (“Yeo”). I am one of the attorneys responsible

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for this action.

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2.

Since the time that Yeo retained my law firm on April 14, 2011 and met with me

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for the first time on April 27, 2011, attorneys at my firm have worked diligently to investigate the

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claims against Yeo and prepare the instant motion and supporting documents.

259537.001/280595
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DECLARATION OF ANDREW P. HOLLAND IN SUPPORT OF MOTION TO SET ASIDE DEFAULT

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As stated in the Points and Authorities in Support of the Motion to Set Aside

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Default, I believe that Yeo has viable defenses against plaintiff’s claims for copyright

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infringement, which is supported by the expert declaration of David Crane previously filed in this

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action, which Yeo has requested that the Court take Judicial Notice of pursuant to Rule 201 of

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Federal Rules of Evidence, and the Declaration of Yao Wei Yeo filed herewith. In the event that

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the Court grants Yeo’s Motion to Set Aside Default, but does not dismiss the Second Amended

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Complaint based on lack of personal jurisdiction, Yeo intends to file an Answer to Mr. Miller’s

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Second Amended Complaint and defend against Mr. Miller’s claim of copyright infringement.

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Attached as Exhibit A is a true and correct copy of that proposed Answer that would be filed on
Yeo’s behalf.
4.

A PROFESSIONAL LAW CORPORATION

11
285 Hamilton Avenue, Suite 300
PALO ALTO, CALIFORNIA 94301
[phone]

THOITS, LOVE, HERSHBERGER & McLEAN

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On April 28, 2011 I spoke with Mr. Miller’s counsel, Brian Hancock, and

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requested that Mr. Miller stipulate to set aside the entry of default against Yeo so that the parties

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could avoid the time and expense of the instant motion. I believe that this was a reasonable

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request given the fact that only a few weeks earlier, on April 12, 2011, Mr. Hancock had advised

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Yeo by email that he should retain an attorney to appear in the action to both discuss settlement

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and present evidence to defend against Mr. Miller’s claim. Notwithstanding his recent invitation

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to Yeo to participate in the lawsuit, Mr. Hancock e-mailed me on April 28, 2011 that Mr. Miller

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would not stipulate to set aside the entry of default.
5.

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On May 3, 2011 Mr. Hancock e-mailed me that Mr. Miller is willing to stipulate

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to have Yeo’s Motion to Set Aside Default heard on May 19, 2011, on shortened time, so that

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said Motion and Mr. Miller’s Motion for Entry of Default Judgment may be heard on the same

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day.

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6.

I declare under penalty of perjury under the laws of the State of California that the

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foregoing is true and correct, and that this Declaration is executed on May 5, 2011 in Palo Alto,

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California.

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259537.001/280595
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DECLARATION OF ANDREW P. HOLLAND IN SUPPORT OF MOTION TO SET ASIDE DEFAULT

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s/ Andrew P. Holland
Andrew P. Holland

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A PROFESSIONAL LAW CORPORATION

11
285 Hamilton Avenue, Suite 300
PALO ALTO, CALIFORNIA 94301
[phone]

THOITS, LOVE, HERSHBERGER & McLEAN

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259537.001/280595
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DECLARATION OF ANDREW P. HOLLAND IN SUPPORT OF MOTION TO SET ASIDE DEFAULT

EXHIBIT A

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Stephen C. Gerrish/Bar No. 061253
[e-mail]
Andrew P. Holland/Bar No. 224737
[e-mail]
THOITS, LOVE, HERSHBERGER & McLEAN
A Professional Law Corporation
285 Hamilton Avenue, Suite 300
Palo Alto, California 94301
Telephone: [phone]
Facsimile:
[phone]
Attorneys for Defendant
Yao Wei Yeo

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

A PROFESSIONAL LAW CORPORATION

11
285 Hamilton Avenue, Suite 300
PALO ALTO, CALIFORNIA 94301
[phone]

THOITS, LOVE, HERSHBERGER & McLEAN

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SAN FRANCISCO DIVISION

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DANIEL M. MILLER,

No. 3:10-CV-00264 (WHA)
ANSWER OF YAO WEI YEO TO
SECOND AMENDED COMPLAINT

Plaintiff,

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v.

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FACEBOOK, INC. and YAO WEI
YEO,

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Defendants.

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Defendant Yao Wei Yeo. ("Yeo") answers the Second Amended Complaint filed by
Daniel M. Miller ("Miller") as follows:
THE PARTIES

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1.

Yeo is without sufficient knowledge or information to form a belief as to the truth

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of the allegations contained in Paragraph 1 concerning where Miller resides and on those grounds

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denies those allegations.

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2.

Yeo is without sufficient knowledge or information to form a belief as to the truth

of the allegations contained in Paragraph 2 concerning whether Facebook, Inc. (“Facebook”) is a

259537.001/280489

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ANSWER TO SECOND AMENDED COMPLAINT

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

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business at 1601 S. California Avenue, Palo Alto, California 94304, and on those grounds denies

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those allegations.

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3.

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Yeo admits that he is an individual who resides in Singapore. Except as expressly

admitted herein, Yeo denies the allegations of Paragraph 3.
JURISDICTION AND VENUE

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4.

Yeo neither admits nor denies the allegations contained in Paragraph 4 because

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those allegations are conclusions of law to which no response is required. To the extent those

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allegations may be deemed allegations of fact, Yeo denies the allegations of Paragraph 4.
5.

Yeo neither admits nor denies the allegations contained in Paragraph 5 because

A PROFESSIONAL LAW CORPORATION

11
285 Hamilton Avenue, Suite 300
PALO ALTO, CALIFORNIA 94301
[phone]

THOITS, LOVE, HERSHBERGER & McLEAN

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those allegations are conclusions of law to which no response is required. To the extent those

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allegations may be deemed allegations of fact, Yeo denies the allegations of Paragraph 5.

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6.

Yeo neither admits nor denies the allegations contained in Paragraph 6 because

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those allegations are conclusions of law to which no response is required. To the extent those

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allegations may be deemed allegations of fact, Yeo denies the allegations of Paragraph 6.

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7.

Yeo is without sufficient knowledge or information to form a belief as to the truth

of the allegations contained in Paragraph 7 and on those grounds denies those allegations.
8.

Yeo denies the allegations contained in Paragraph 8.
FACTUAL BACKGROUND

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9.

Yeo is without sufficient knowledge or information to form a belief as to the truth

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of the allegations contained in Paragraph 9 concerning who authored the Boomshine video game

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and on those grounds denies those allegations.

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10.

Yeo admits that Boomshine is a game played on the Internet. Except as expressly

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admitted herein, Yeo is without sufficient knowledge or information to form a belief as to the

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truth of the remaining allegations and on those grounds denies those allegations.

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11.

Yeo is without sufficient knowledge or information to form a belief as to the truth

259537.001/280489

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ANSWER TO SECOND AMENDED COMPLAINT

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of the allegations contained in Paragraph 11 and on those grounds denies those allegations.
12.

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Yeo is without sufficient knowledge or information to form a belief as to the truth

of the allegations contained in Paragraph 12 and on those grounds denies those allegations.
13.

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Yeo admits that he maintained a website known as www.zwigglers.com and that

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he authored a game that was available for play on the Internet through Facebook and said site.

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Except as expressly admitted herein, Yeo denies the allegations of Paragraph 13.
14.

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Yeo admits that at least as early as April, 2009 Yeo published an application

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entitled ChainRxn that was available through Facebook’s Platform. Except as expressly admitted

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herein, Yeo denies the allegations of Paragraph 14.
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Yeo admits that ChainRxn is a game played on the Internet using Adobe Flash ™

A PROFESSIONAL LAW CORPORATION

11
285 Hamilton Avenue, Suite 300
PALO ALTO, CALIFORNIA 94301
[phone]

THOITS, LOVE, HERSHBERGER & McLEAN

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technology and that among other things the game allows players to click on circles. Except as

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expressly admitted herein, Yeo denies the allegations of Paragraph 15.
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Yeo admits that he published an application entitled ChainRxn that was available

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through Facebook’s Platform. Except as expressly admitted herein, Yeo denies the allegations of

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Paragraph 16.
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Yeo admits that until sometime after the initial filing of this action on October 9,

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2009, an application entitled ChainRxn was available through Facebook’s Platform located at

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www.facebook.com/zwigglers. Yeo is without sufficient knowledge or information to form a

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belief as to the truth of the remaining allegations contained in Paragraph 17 and on those grounds

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denies those allegations.
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Yeo admits that until sometime after the initial filing of this action, an application

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titled

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www.facebook.com/zwigglers. Yeo is without sufficient knowledge or information to form a

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belief as to the truth of the remaining allegations contained in Paragraph 18 and on those grounds

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denies those allegations.

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ChainRxn

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was

available

through

Facebook’s

Platform

located

at

Yeo admits that ChainRxn was available through Facebook’s Platform located at

259537.001/280489

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ANSWER TO SECOND AMENDED COMPLAINT

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www.facebook.com/zwigglers. Yeo denies that ChainRxn infringes any intellectual property

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rights that Miller may have in the Boomshine game. Yeo is without sufficient knowledge or

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information to form a belief as to the truth of the remaining allegations contained in Paragraph

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20.

Yeo denies the allegations contained in Paragraph 20.

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21.

Yeo is without sufficient knowledge or information to form a belief as to the truth

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A PROFESSIONAL LAW CORPORATION

11
285 Hamilton Avenue, Suite 300
PALO ALTO, CALIFORNIA 94301
[phone]

THOITS, LOVE, HERSHBERGER & McLEAN

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of the allegations contained in Paragraph 21 and on those grounds denies those allegations.
22.

Yeo is without sufficient knowledge or information to form a belief as to the truth

of the allegations contained in Paragraph 22 and on those grounds denies those allegations
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Yeo is without sufficient knowledge or information to form a belief as to the truth

of the allegations contained in Paragraph 23 and on those grounds denies those allegations
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Yeo is without sufficient knowledge or information to form a belief as to the truth

of the allegations contained in Paragraph 24 and on those grounds denies those allegations.

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25.

Yeo denies the allegations contained in Paragraph 25.

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26.

Yeo denies that ChainRxn infringes any intellectual property rights that Miller

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may have in the Boomshine game. Yeo is without sufficient knowledge or information to form a

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belief as to the truth of the remaining allegations contained in Paragraph 26 and on those grounds

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denies those allegations.

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27.

Yeo denies that ChainRxn infringes any intellectual property rights that Miller

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may have in the Boomshine game. Yeo is without sufficient knowledge or information to form a

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belief as to the truth of the remaining allegations contained in Paragraph 27 and on those grounds

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denies those allegations.

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28.

Yeo is without sufficient knowledge or information to form a belief as to the truth

of the allegations contained in Paragraph 28 and on those grounds denies those allegations.
29.

Yeo is without sufficient knowledge or information to form a belief as to the truth

of the allegations contained in Paragraph 29 and on those grounds denies those allegations.

259537.001/280489

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ANSWER TO SECOND AMENDED COMPLAINT

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30.

Yeo denies that ChainRxn infringes any intellectual property rights that Miller

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may have in the Boomshine game. Yeo is without sufficient knowledge or information to form a

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belief as to the truth of the remaining allegations contained in Paragraph 30 and on those grounds

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denies those allegations.

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31.

Yeo admits that a letter from Miller to Yeo dated May 7, 2009 is attached to

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Miller’s Second Amended Complaint.

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Except as expressly admitted herein, Yeo denies the

remaining allegations of Paragraph 31.
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Yeo denies the allegations contained in Paragraph 32.

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33.

Yeo denies the allegations contained in Paragraph 33.

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34.

Yeo denies that ChainRxn infringes any intellectual property rights that Miller

A PROFESSIONAL LAW CORPORATION

11
285 Hamilton Avenue, Suite 300
PALO ALTO, CALIFORNIA 94301
[phone]

THOITS, LOVE, HERSHBERGER & McLEAN

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may have in the Boomshine game. Yeo is without sufficient knowledge or information to form a

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belief as to the truth of the remaining allegations contained in Paragraph 34 and on those grounds

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denies those allegations.
COUNT ONE
Copyright Infringement by Defendant Yeo

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35.

Yeo realleges and incorporates by reference each and every response contained in

each of the above paragraphs as if fully set forth herein.

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36.

Yeo denies the allegations contained in Paragraph 36.

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37.

Yeo denies that ChainRxn infringes any intellectual property rights that Miller

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may have in the Boomshine game. Yeo is without sufficient knowledge or information to form a

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belief as to the truth of the remaining allegations contained in Paragraph 37 and on those grounds

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denies those allegations.

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38.

Yeo denies the allegations contained in Paragraph 38.

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39.

Yeo denies the allegations contained in Paragraph 39.

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40.

Yeo denies the allegations contained in Paragraph 40.

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41.

Yeo denies the allegations contained in Paragraph 41.

259537.001/280489

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ANSWER TO SECOND AMENDED COMPLAINT

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42.

COUNT TWO
Contributory Copyright Infringement as to Defendant Facebook, Inc.

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Yeo denies the allegations contained in Paragraph 42.

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Yeo realleges and incorporates by reference each and every response contained in

each of the above paragraphs as if fully set forth herein.

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44.

Yeo denies the allegations contained in Paragraph 44.

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45.

Yeo denies that ChainRxn infringes any intellectual property rights that Miller

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may have in the Boomshine game. Yeo is without sufficient knowledge or information to form a

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belief as to the truth of the remaining allegations contained in Paragraph 45 and on those grounds

A PROFESSIONAL LAW CORPORATION

11
285 Hamilton Avenue, Suite 300
PALO ALTO, CALIFORNIA 94301
[phone]

THOITS, LOVE, HERSHBERGER & McLEAN

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denies those allegations.
46.

Yeo denies that ChainRxn infringes any intellectual property rights that Miller

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may have in the Boomshine game. Yeo is without sufficient knowledge or information to form a

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belief as to the truth of the remaining allegations contained in Paragraph 46 and on those grounds

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denies those allegations.

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47.

Yeo denies that ChainRxn infringes any intellectual property rights that Miller

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may have in the Boomshine game. Yeo is without sufficient knowledge or information to form a

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belief as to the truth of the remaining allegations contained in Paragraph 47 and on those grounds

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denies those allegations.

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48.

Yeo denies that ChainRxn infringes any intellectual property rights that Miller

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may have in the Boomshine game. Yeo is without sufficient knowledge or information to form a

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belief as to the truth of the remaining allegations contained in Paragraph 48 and on those grounds

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denies those allegations.

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49.

Yeo denies that ChainRxn infringes any intellectual property rights that Miller

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may have in the Boomshine game. Yeo is without sufficient knowledge or information to form a

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belief as to the truth of the remaining allegations contained in Paragraph 49 and on those grounds

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denies those allegations.

259537.001/280489

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ANSWER TO SECOND AMENDED COMPLAINT

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50.

Yeo denies that ChainRxn infringes any intellectual property rights that Miller

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may have in the Boomshine game. Yeo is without sufficient knowledge or information to form a

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belief as to the truth of the remaining allegations contained in Paragraph 50 and on those grounds

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denies those allegations.

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51.

Yeo denies that ChainRxn infringes any intellectual property rights that Miller

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may have in the Boomshine game. Yeo is without sufficient knowledge or information to form a

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belief as to the truth of the remaining allegations contained in Paragraph 51 and on those grounds

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denies those allegations.
AFFIRMATIVE DEFENSES

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A PROFESSIONAL LAW CORPORATION

Further answering the Second Amended Complaint, Yeo asserts the following defenses.

11
285 Hamilton Avenue, Suite 300
PALO ALTO, CALIFORNIA 94301
[phone]

THOITS, LOVE, HERSHBERGER & McLEAN

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Yeo reserves the right to amend its Answer with additional defenses as further information is

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obtained.

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First Defense

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Each of Miller’s claims fails to state facts sufficient to constitute a claim for relief.

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Second Defense

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Each of Miller’s claims is barred by the doctrine of waiver.
Third Defense

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Each of Miller’s claims is barred by the doctrine of estoppel.
Fourth Defense

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Each of Miller’s claims is barred by the doctrine of unclean hands.
Fifth Defense

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Each of Miller’s claims is barred by the doctrine of copyright misuse.

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Sixth Defense

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Each of Miller’s claims is barred by the doctrine of fraud on the Copyright Office.

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Seventh Defense

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Each of Miller’s claims is barred by the doctrine of laches.

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ANSWER TO SECOND AMENDED COMPLAINT

Eighth Defense

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Miller’s claim for Copyright Infringement is barred, in whole or in part, because he has

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not pursued his claims in good faith.
Ninth Defense

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Each of Miller’s claims is barred, in whole or in part, because Defendant’s alleged

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actions come within the doctrine of fair use and/or de minimis copying of protectable elements,

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if any.
Tenth Defense

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copyrighted work lacks originality.
Eleventh Defense

A PROFESSIONAL LAW CORPORATION

11
285 Hamilton Avenue, Suite 300
PALO ALTO, CALIFORNIA 94301
[phone]

THOITS, LOVE, HERSHBERGER & McLEAN

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Each of Miller’s claims is barred, in whole or in part, because Miller’s alleged

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Each of Miller’s claims is barred, in whole or in part, because Miller’s alleged
copyrighted work constitutes nothing more than unprotectable "Scènes à faire".
Twelfth Defense

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Each of Miller’s claims is barred, in whole or in part, because Miller lacks standing to
bring this action.
Thirteenth Defense

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Each of Miller’s claims is barred, in whole or in part, because Miller has failed to
prosecute this action and/or comply with court orders.
Fourteenth Defense

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Each of Miller’s claims is barred, in whole or in part, by licenses, express and implied.
granted or authorized to be granted by Miller.
Fifteenth Defense

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Each of Miller’s claims is barred. in whole or in part, because the accused work was
independently created without reference to the claimed work.

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259537.001/280489

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ANSWER TO SECOND AMENDED COMPLAINT

Sixteenth Defense

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Each of Miller’s claims is barred, in whole or in part, because the claimed work was
abandoned.
Seventeenth Defense

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Each of Miller’s claims is barred, in whole or in part, as Miller heretofore waived,
licensed, abandoned or forfeited any rights in the claimed work.
Eighteenth Defense

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Miller’s damages, if any, are limited by Defendant’s innocent intent.

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Dated: May ___, 2011.

THOITS, LOVE,
HERSHBERGER & McLEAN

A PROFESSIONAL LAW CORPORATION

11
285 Hamilton Avenue, Suite 300
PALO ALTO, CALIFORNIA 94301
[phone]

THOITS, LOVE, HERSHBERGER & McLEAN

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By

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Andrew P. Holland
Attorneys for Defendant
Yao Wei Yeo

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259537.001/280489

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ANSWER TO SECOND AMENDED COMPLAINT