Be In, Inc. v. Google Inc. et al

Filing 39

EXHIBITS re 38 Declaration in Support of Motion for Leave to File Second Amended Complaint filed byBe In, Inc.. (Related document(s) 38 ) (KatieLynn, Townsend) (Filed on 4/30/2013)

EXHIBIT.A

GIBSON,DUNN & CRUTCHER LLP
S. ASHLIE BERINGER,SBN 263977
aberinger~agibsondunn.com
1881 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: 650.849.5333
WAYNE BARSKY,SBN 116732
wbarsky(a~gibsondunn.com
KATIELYNN TOWNSEND,SBN 254321
ktownsend(a~gibsondunn.com
2029 Century Park East
Los Angeles, California 90067
8' Telephone: [phone]
Facsimile: 310.551.8741
9
Attorneys for Plaintiff
10 BE IN,INC., a New York corporation

UNITED STATES DISTRICT COURT
13

NORTHERN DISTRICT OF CALIFORNIA

14

SAN JOSE DIVISION
CASE NO.5:12-CV-03373-LHK

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BE IN,INC.,a New York corporation,
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Plaintiff,
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GOGGLE,INC.,a California corporation,
YOUTUBE,LLC,a Delaware limited liability
company,and GOGGLE UK LTD.,a private
limited company registered in England and
Whales,

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Defendants.
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Gibson, Dunn &
Crutcher LLP

SECOND AMENDED COMPLAINT
Case No. 5:12-CV-03373-LHK

SECOND AMENDED COMPLAINT FOR
COPYRIGHT INFRINGEMENT,
MISAPPROPRIATION OF TRADE
SECRETS,BREACH OF IMPLIED
CONTRACT AND BREACH OF
CONTRACT
DEMAND FOR JURY TRIAL

'),
(
PlaintiffBE IN,INC. "Be In" or "Plaintiff by and through its counsel ofrecord, for its
2

(
Second Amended Complaint against Defendants Google Inc. "Google"), YouTube LLC

(
3 (
"YouTube"), and Google UK Ltd. "Google UK")hereby alleges as follows:
I. NATURE OF ACTION

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5

1.

Plaintiff, Be In, brings this action to halt the brazen and continued copying, use, and

6

misappropriation ofits valuable trade secrets and intellectual property rights. Be In is the creator and

7

developer of CamUp,an award-winning social entertainment consumption platform that allows a

8

group offriends to simultaneously watch, listen, chat and collaborate around shared videos, music,

9

and other media in a real-time, trusted environment. Since 2007, Be In has devoted extensive time,

10

resources and ingenuity to creating the unique design, technology and infrastructure for its platform,

11

as well as proprietary strategies for integrating that platform into established content, social and

12

media platforms.

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2.

In May,2011, approximately two months after Be In publicly unveiled CamUp at

14

(
South By Southwest "SXSW")in Austin, Texas—the same industry-leading interactive technology

15

conference that, in 2007, was instrumental in the launch of Twitter—Be In met with ahigh-level

16

Google executive to discuss Be In's vision and strategy for how the CamUp platform could transform

17

Google's business with respect to social media, advertising and analytics. After insisting on a non-

18

disclosure agreement, and being assured that Be In was protected from any unauthorized use of its

19

confidential, proprietary business strategies or platform, Be In disclosed to Google during the

20

meeting, in detail, its strategy for, among other things, using CamUp's platform to implement a social

21

entertainment strategy for YouTube and other Google products, and thus to create community and

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social context around Google's vast, anonymous user base. CamUp's proprietary strategy and

23

business plans promised a new and ingenuous opportunity for Google to compete, as it had been

24

unsuccessfully attempting to do, with Facebook in the arena of social media and analytics.

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3.

Google responded enthusiastically to CamUp and Be In's social entertainment

26

integration strategy, and asked Be In to provide even more information, in writing, following the

27

meeting. The next day, Be In emailed Google a summary of its proprietary social integration

28

strategy. After Be In shared its strategic roadmap, Google abruptly terminated all communications

Gibson, Dunn &
Cmtcher LLP

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Case No. 5:12-CV-03373-LHK

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with Be In, refusing to respond to e-mails seeking to arrange follow-up steps discussed during their

2

meeting.

3

4.

In June, 2011, approximately one and a half months after Plaintiff's disclosure,

4

Google launched Google+, its latest and largest attempt to launch a viable social network to rival

5

Facebook. As part of Google+, Google launched "Hangouts —an integrated social entertainment
"

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consumption platform that bears striking similarity to CamUp. Indeed, Hangouts is virtually identical

7

to CamUp. It allows groups offriends from within the Google+ social network to "hangout'together

8

in a familiar online room, simultaneously watching, listening, chatting and collaborating around

9

shared media and video. Before Google launched Hangouts, no company other than CamUp had

10
11

created this type ofsocial entertainment consumption platform.
5.

The creative design ofHangouts is strikingly similar to CamUp's unique design

12

elements in every respect—design, layout, look and feel, arrangement ofelements, format, tag lines,

13

and color scheme—leaving no doubt that Google slavishly copied the CamUp platform in a hurried

14

attempt to bolster its new social network, Google+. Hangouts is reportedly, by far, the most popular

15

feature ofGoogle+today, and business journalists have written repeatedly about the critical

16

importance ofHangouts to driving and sustaining the success of Google+.

17

6.

Google not only copied Be In's unique entertainment consumption platform—the only

18

platform of its kind in existence at the time—Defendants also implemented, and are continuing to

19

implement on a step-by-step basis, each ofthe proprietary business strategies Be In disclosed to

20

Google in confidence in May,2011. Among other things, Defendants utilized Be In's social

21

entertainment integration strategy, first integrating Hangouts.(and with it, Google's fledgling social

22

network, Google+)with YouTube via Be In's social plug in strategy, and then progressing to

23

integrate Hangouts with Google Docs, and later, third-party apps—thus building a critical social

24

consumption platform around Google's previously asynchronous products—precisely the strategy

25

that was disclosed and detailed by Be In in confidential communications with Google. Upon

26

information and belief, Defendants intend to continue to utilize this and other confidential,

27

proprietary business and marketing strategies developed by Be In in connection with its platform,

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Gibson, Dunn &
Crotchet LLP

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SECOND AMENDED COMPLAINT
Case No. 5:12-CV-03373-LHK

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CamUp,for the benefit of Google and Hangouts, Google's competing social entertainment

2

consumption platform.

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7.

In view ofDefendants' misappropriation ofPlaintiff's trade secrets, infringement of

4

Plaintiff's copyrights in CamUp,and the other wrongful conduct set forth herein, Plaintiff is entitled

5

to preliminary and permanent injunctive relief, enhanced damages and attorney's fees.
TT

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8.

T 1 TTTT CY

Be In, Inc. is a corporation organized and existing under the laws ofthe State ofNew

York with its principal place of business in New York City, New York.
9.

Google, Inc. is a corporation organized and existing under the laws ofthe State of

Delaware with its principal place ofbusiness in Mountain View, California.
10.

YouTube,LLC is a Delaware limited liability company with its principal place of

12

business in San Bruno, California. Upon information and belief, YouTube, LLC is a subsidiary of

13

Google,Inc. whose members are citizens of Delaware and/or California.

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11.

Upon information and belief, Google UK Ltd. is a company incorporated in England

15

and Whales, and is a wholly-owned subsidiary of Google,Inc. Upon information and belief, Google

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UK Ltd. provides marketing, sales, and development services to Google and its other subsidiaries.
III. JURISDICTION AND VENUE

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12.

This Court has exclusive subject matter jurisdiction over Plaintiff's claims under the

Copyright Act pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1338(a) and (b).
13.

This Court also has supplemental jurisdiction over Plaintiffls state law claims under

21

28 U.S.C. § 1367, because they are so related to the federal claims that they form part ofthe same

22

case or controversy and derive from a common nucleus of operative facts.

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14.

This Court also has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1332 by

virtue ofthe diversity ofthe parties, and because the amount in controversy exceeds $75,000.00.
15.

This Court has personal jurisdiction over Defendants because Defendants' principal

26

places of business are in this District, or, upon information and belief, Defendants transact, operate,

27

and solicit business in this District. Additionally, Defendants purposefully directed their activities at

28
Gibson, Dunn &
Crotchet LLP

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SECOND AMENDED COMPLAINT
Case No. 5:12-CV-03373-LHK

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1~ ~ the forum, thereby invoking the benefits and protections of its laws; the claims arise out of or relate to
2 ~ Defendant's forum-related activities; and the exercise ofjurisdiction is reasonable.
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16.

Venue is proper in this District under 28 U.S.C. § 1391(b) and (c)(3) because Google

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UK is, upon information and belief, an alien defendant and can be sued in any District, Google and

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YouTube's principal place of business is Mountain View, California, located within this judicial

6

district, and each ofthese Defendants are residents ofthe State of California. Venue is also proper in

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this District under 28 U.S.C. § 1391(b) because a substantial part ofthe events giving rise to the

8

claims occurred in this District.
IV.INTRADISTRICT ASSIGNMENT

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17.

Pursuant to Civil L.R. 3-2(c), this action should be assigned to the San Jose district

because this action arises in Santa Clara County. See also Civil L.R. 3-2(e).
V. GENERAL ALLEGATIONS

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The Development Of CamUp
18.

In 2007, Be In co-founders Elio D'Anna, Joseph D'Anna and Elia D'Anna

15

conceptualized an online platform that would facilitate real-time, simultaneous social entertainment

16

consumption: an online space that would bring multiple friends together in an interactive, but also

17

familiar, environment centered around musical collaboration and media sharing—a platform they

18

believed.could transform how people engage with one another and experience the Internet.

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20 '

19.

In the years that followed, Be In would invest countless hours and substantial

resources and ingenuity in bringing this innovative concept to life. In 2008 and 2009 alone, Be In

21' invested several hundred thousand dollars in developing and refining its co-founders' vision of an
22

online platform that would combine music collaboration, shared entertainment consumption and

23

social interaction in an intimate online setting.

24

20.

In 2009, Be In completed the development ofthe first beta version of its platform,

25

which allowed up to six individuals to simultaneously collaborate in a virtual music studio, around

26

the same shared media, using standard webcams and/or chat—a concept that required extensive

27

technical and creative vision and ingenuity. Be In continued to make improvements to its platform

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and, in 2010, completed the development ofthe second and third beta versions, which, among other

Gibson, Dunn &
Crutcher LLP

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SECOND AMENDED COMPLAINT
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features,~allowed up to 10 people to simultaneously consume and create music, and other media,

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without compromising the entertainment values or the intimacy ofthe shared social experience.

3

21.

Beginning in 2008, and continuing through 2009 and 2010, Be In developed

4

proprietary strategies for implementing its platform with content partners in unique ways, and for

5

driving value and monetization opportunities to these content providers and CamUp.

6

22.

Recognizing the vast stand-alone potential ofthe social entertainment consumption

7

features of its platform, in late 2010, Be In made the decision to separate its existing platform into

8

two distinct online platforms: GigIn (a virtual music studio) and CamUp(a social entertainment

9

consumption platform).

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23.

As of early 2011, both GigIn and CamUp were non-public platforms accessible only

11

by designated persons through a specific internal domain with a proprietary login.

12

CamUp's Public Release and Unique Expressive Elements

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24.

In March 2011, Be In publicly unveiled GigIn and CamUp for the first time at SXSW

14

Interactive—an annual interactive media conference held in Austin, Texas that is widely seen in the

15

technology industry as a launching pad for innovative online platforms and applications. SXSW

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Interactive played a pivotal role in the success and launch of Twitter and Foursquare, for example.

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25.

CamUp was one of a kind and offered something that no company had ever achieved.

18

While other companies had developed video chat services, social media services, or online

19

entertainment consumption platforms in the past, until Be In's public release of CamUp in March

20

2011, no company had developed a platform that combined all ofthese elements to create a live,

21

familiar environment for shared entertainment consumption and social interaction. And its unique

22

combination ofthose elements made CamUp an unprecedented mode ofconsuming shared

23

entertainment and other media online, which the business and technology community reacted to

24

enthusiastically.

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26.

Through individual, expressive elements and its overall creative design, CamUp

26

fosters a sense oftrust, familiarity, and community, all without compromising the central

27

entertainment experience. Among the many creative elements that CamUp designed to achieve this

28

unique experience are:

Gibson, Dunn &
Crutcher LLP

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SECOND AMENDED COMPLAINT
Case No. 5:12-CV-03373-LHK

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s

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Each CamUp user has his or her own "room," which features a large, central frame for

27.

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viewing shared media(the "Social Payer"), and smaller video frames, across the bottom ofthe page,

3

for everyone gathered in that room. Frames above and to the sides ofthe Social Player include a text

4

chat window, as well as a shared media playlist, which accommodates music, videos, photos,

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documents, and other media, and can be added to and modified by anyone inside the room.

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28.

The Social Player is designed to be "center stage," occupying dominant visual space in

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"
each online "room —a design choice that reflects the primacy ofthe shared entertainment experience

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to the CamUp platform. This element of CamUp stands in stark contrast to, for example, video chat

21

services that devote equal space to streaming media and individual video streams.

22

29.

At the same time, a number ofelements of CamUp were specifically designed to

23

create a sense ofintimacy, familiarity and trust built around a "real name" culture—qualities that

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distinguish CamUp from many video chat services that are characterized by anonymity and/or

25

antisocial or promiscuous cultures. Examples ofthese elements include:

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(a)

The use of"room" as the central social framework for the service, and the

27

ability to name individual rooms— which are prominently displayed at the top

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ofeach session—to reflect the personal style and culture ofthe participants;

Gibson, Dunn &
Crutcher LLP

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SECOND AMENDED COMPLAINT
Case No. 5:12-CV-03373-LHK

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(b)

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The ability for users to invite friends to hang out in their room from their home

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pages, mimicking the social experience of inviting a friend over to watch a

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movie or listen to music;
(c)

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A prominent "Invite Friend" button that links to existing social networks or

5

contacts and allows users to invite over a group oftrusted friends, as opposed

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to strangers;
(d)

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CamUp's "real name culture," where users are encouraged to use real names
and photos to create authentic identities on the site;

8
(e)

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The ability to "lock" individual rooms, to keep each social entertainment
experience private(rooms are private and invitation-only by default, but can be

10

made public);

(fl

The ability to give specific friends the "keys" to your room, either permanently
or only for a specified period oftime, allowing increased social access to your
closest friends, even when the user is away;

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(g)

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The "shaded" friend silhouette icon for the empty seats in a CamUp room,

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which prompts users to expand the social media experience to include

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additional friends.

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30.

In addition to the elements that create a sense offamiliarity and trust, other elements

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of CamUp enhance the communal (rather than individual) nature ofthe shared entertainment

20 '

experience, while enabling sufficient individual control to ensure that the group functions cohesively.

21

For example:

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(a)

Icons in the group's shared playlist show who contributed each piece of media;

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(b)

There are options for "shared" control over the playlist and the Social Player—

24

including stop and start capabilities—as well as a "leader mode," which gives

25

only one user control.

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27

(c)

A group text chat frame on the side ofthe Social Player creates more
opportunities for dialogue and chatter within the group.

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Gibson, Dunn &
Crutcher LLP

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SECOND AMENDED COMPLAINT
Case No.5:12-CV-03373-LHK

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31.

At the same time, the CamUp design is intended to strike a balance between the

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communal and individual user experience, giving each user the sense that the shared entertainment—

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and the conversation among friends—is"around" him or her (i.e. that he or she is central to the

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entertainment experience and notjust a passive consumer ofstreaming media). For example:
(a)

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The viewing user is displayed above the group, in a larger photo, in the upper
left ofthe screen.

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(b)

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The viewing user is immediately above the "group controls," conveying a

8

sense that he or she has ownership of, and the ability to control, the group's

9

shared entertainment experience.
(c)

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An individual chat option allows for private text conversations in addition to

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the group chat, and fosters one-on-one interaction amidst private groups,just

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as would happen when a small group hangs around in the living room.
32.

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Be In has obtained a copyright registration from the United States Copyright Office

for registration of its copyright in the CamUp work and platform. Reg. No. TX-7-567-462.

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//

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//

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Crotchet LLP

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SECOND AMENDED COMPLAINT
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Google's First Exposure to CamUp; Critical Acclaim for CamUp Platform
33.

2

When it debuted at SXSW,CamUp was introduced alongside GigIn, with Be In

3

representatives and beta testers giving live, real-time demonstrations of both platforms only meters

4

away from where Google had set up its booth, as reflected in the photograph below.

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During the conference, several Google engineers visited the Be In booth, viewing the

demonstrations of both Gig In and CamUp,and discussing the platforms with Be In's representatives.

21' Marisa Mayer, then-Vice President of Consumer Products at Google, also visited Be In's booth,
22

viewed the demonstrations, and specifically congratulated Be In for its innovative CamUp platform.

23

At no point during SXSW did anyone from Google publicly announce or suggest privately to Be In

24

that Google was developing any platform or product similar in any respect to CamUp. And although

25

Google's booth featured demonstrations of several Google products in development, there was no

26

hint of any product relating to social entertainment consumption.

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//

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//

Gibson, Dunn &
Crutcher LLP

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35.

Shortly after unveiling CamUp at SXSW,in or about early April, 2011, Be In

2

launched www.camup.com, making its social entertainment consumption platform publicly

3

accessible on the Internet.

4

36.

Around the same time, Be In was named afinalist—and among "the most innovative"

5

"
and "pioneering" start-ups in digital entertainment —by MIPTV Connected Creativity Ventures in its

6

competition for innovation in connected entertainment.

7

37.

In connection with that competition Be In gave a presentation in Cannes,France, that

8

included a live demonstration of CamUp for a panel ofindustry experts. At least one senior Google

9

and YouTube executive was present at the competition.

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38.

On or about April 6,2011, Be In won the "Early Stage" award from MIPTV

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Connected Creativity Ventures for the most innovative start-up ofthe year.

12

Be In's Meeting With Goole And Disclosure OfIts Confidential,Proprietary Business and

13

Marketing Strategies

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39.

Less than a month after CamUp was publicly unveiled at SXSW,and shortly after Be

15

In was named the most innovative start-up ofthe year by MIPTV Connected Creativity Ventures,

16 ',

Bryan Foss, a consultant for Be In, attempted to set up a meeting between representatives from Be In

17

and representatives from Google and YouTube to discuss CamUp. On or about Apri127, 2011 and

18

again on May 7, 2011, Mr. Foss reached out to Richard Robinson, a Director employed by Google

19

UK in London, suggesting that Be In's social entertainment consumption platform would "work well

20

with Google and YouTube."

21

40.

By this time, Be In had devoted substantial time and resources to developing a

22

comprehensive confidential business strategy for maximizing CamUp's adoption and integration with

23

first party content partners (like Google) and third-party developers through an open API.

24

41.

In particular, with respect to YouTube and Google, Be In devised a strategy to

25

transform Google's(and YouTube's) massive—but unstructured, and largely anonymous—user base,

26

into an organized social community that would foster shared social experiences around Google's

27

content products, including, most immediately, YouTube. At the time, despite millions of views

28

daily, YouTube viewers were nameless and faceless and, while they had the opportunity to post

Gibson, Dunn &
Crutcher LLP

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comments to videos, they had no ability to interact with one another through an authenticated social

2

network or in a real-time communal setting. Be In recognized that YouTube and Google were

3

missing an opportunity to create a community, cohesiveness and social interaction around the media

4

content YouTube offered, and Be In devised a highly innovative strategy to integrate CamUp with

5

Google so as to seize that opportunity.

6

42.

One aspect ofthis integration strategy was the creation of a social plug in between

7

YouTube and CamUp: a button on the bottom right ofthe YouTube media window inviting users to

8

"Watch with your friends on CamUp." By clicking the button, users would be taken seamlessly into

9

CamUp's trusted social environment, where users could.then watch YouTube videos simultaneously

10

with their friends, while chatting about those videos face-to-face in real time. Once YouTube users

11

were fully integrated into the social network,the opportunities for monetization and analytic insights

12

would be endless.

13

43.

As Be In disclosed to Google,this strategy gave Google precisely what it had been

14

attempting—unsuccessfully—to develop for years: a social network that would allow it to compete in

15

the arena of social media and to create a social layer around its myriad products. Google had tried,

16

and failed, multiple times to create its own viable social network. Previous attempts to build a

17

network from existing products—like Gmail—had been notorious flops. Be In's social integration

18

strategy offered Google the promise ofcreating social engagement and interaction around YouTube's

19

existing media content and Google's(and YouTube's) vast, existing user base. Be In did not disclose

20

its strategy to anyone outside the company prior to meeting'with Google.

21

44.

On or about May 8, 201 1, Mr. Robinson agreed to meet with Joseph D'Anna, CEO

22

and co-founder of Be In, and Nik Moskov,Be In's Vice President of Business Development. Mr.

23

Robinson advised that Bruce Dailey,then a Director at YouTube, would also attend the meeting. Be

24

In understood that these individuals would be attending the meeting as representatives of—and acting

25

on behalfof—Google and its subsidiary, YouTube.

26

45.

In advance ofthe meeting, on or about May 9,2011, Mr. Miskov emailed Mr.

27

Robinson indicating that while Be In was "more than happy to come and demo[CamUp]as it

28

publically [sic] exists and talk about what we have achieved so far," Be In wanted to "dive deeper

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Crutcher LLP

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SECOND AMENDED COMPLAINT
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into our business plan and strategy and to discuss how CamUp can drive tremendous value to giants

2

like YouTube and Google." Mr. Miskov explained that Be In's business plans and strategies were

3

"all trade secrets that could be harmful to communicate without any protection." Accordingly, and,

4

"in order to gauge whether it is appropriate to get into that level ofdiscussion" at their meeting, Mr.

5

Miskov asked Mr. Robinson if he would "agree to signing a Mutual Non-Disclosure Agreement on

6

behalf of Google." Mr. Miskov attached a draft non-disclosure agreement to his e-mail.

7

46.

Be In executives previously had resolved that, should Mr. Robinson refuse to sign a

8

non-disclosure agreement on behalf of Google,they would not discuss any confidential business plan

9

or strategy at their meeting, and, instead, only present their then-public platform.

10

47.

On or about the next day, May 10, 2011, Celia Brown, Mr. Robinson's assistant, sent

11

an electronic form non-disclosure agreement drafted by Google to Mr. Miskov via e-mail. Be In

12

electronically signed that non-disclosure agreement before the meeting with Google (hereinafter the

13

«~A,
>~

14

48.

Mr. D'Anna and Mr. Miskov met with Mr. Robinson at Google's offices in London on

15

or about May 12, 2012. During the meeting, Mr. D'Anna and Mr. Miskov, as well as several Be In

16

employees who appeared through CamUp, provided Mr. Robinson a live, real-time demonstration of

17

the platform.

18

49.

In addition to demonstrating CamUp, Mr. D'Anna and Mr. Miskov detailed Be In's

19

proprietary social entertainment integration strategy. Be In's representatives described, in detail, how

20

CamUp could create game-changing social cohesion and interaction among Google's and YouTube's

21

large existing user base. Mr. D'Anna disclosed to Mr. Robinson Be In's plan to use a social plug in

22

"
on You Tube—a button that would invite YouTube users to "Watch With Your Friends —so as to

23

drive YouTube users into a Google/CamUp social platform and away from competing platforms

24 I

where users could, at that time, share YouTube content, albeit in anon-dynamic environment. Be In

25

even disclosed where,. precisely, such a button would appear on YouTube's interface so as to set it

26

apart from competing platforms.

27
28
Gibson, Dunn R
Crotchet LLP

50.

Be In also discussed with Mr. Robinson a detailed business strategy that would allow

Google to leverage the unique features of CamUp's platform to create a compelling social framework
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Case No. 5:12-CV-03373-LHK

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around the full range of Google's products, such as Google Docs and Google's Android mobile

2

platform.
51.

3

Be In also revealed, in detail, a highly proprietary and ingenuous analytics and

4

advertising strategy that offered Google the potential to use CamUp's platform and social integration

5

strategy to access and aggregate deep social and behavioral insights about YouTube visitors and

6

others using Google products—information that would add incalculable value to Google's core

7

advertising business. It also revealed a unique strategy for delivering branded or sponsored video

8

advertising to users.through the CamUp social entertainment consumption platform, a strategy that

9

could not be effectively implemented by Google under its YouTube model at that time.
52.

10

Another key component ofthe CamUp business plan disclosed to Mr. Robinson

11

involved opening up the CamUp platform to third party developers, who could offer a diverse array

12

of applications, or "apps," and games, and vastly expand the platform's functionality and reach—

13

making the social media consumption platform a hub ofinnovation and attracting users.
53.

14

Be In detailed each ofthese elements of its strategic business plan during its meeting

15

with Mr. Robinson and, one day a$er their meeting, Mr. Miskov, on behalf ofBe In, provided Mr.

16

Robinson, via e-mail, with an 8-page, single-spaced summary overview ofsome ofthe key aspects of

17

Be In's strategic business plan marked as "Confidential."
54.

18

Be In disclosed its proprietary strategic business plan to Mr. Robinson on the mutual

19

understanding and express condition that, if Google utilized any aspect ofthat plan for its benefit, it

20

would be licensing CamUp from Be In for aone-time, lifetime per-user licensing fee, and that Be In

21

would further participate in advertising and sponsorship revenues generated through the CamUp

22

platform and Be In's strategy.

23

55.

Mr. Robinson was enthusiastic about CamUp and the strategic business plan devised

24

by Be In. He asked for additional information, asked to retain materials Be In created during the

25

meeting, and indicated that he would put Be In in touch with someone from YouTube. Mr. Robinson

26

made no mention ofany existing projects or projects in the development stage at Google that were

27 i,

similar in any way to CamUp.

28

//

Gibson, Dunn &
Crutcher LLP

13
SECOND AMENDED COMPLAINT
Case No. 5:12-CV-03373-LHK

14

1

56.

Following the meeting, Mr. Miskov informed Mr. Foss in an email that Be In's

meeting with Google went extremely well, and that the "next steps" included a meeting with

3

YouTube in the UK. In that -mail, Mr. Miskov advised that he felt the"NDA was a good call," and

4

he was happy Be In was "covered" in their conversations with Google.

5

e

2

57.

Mr. Miskov reached out to Mr. Robinson, via email, on multiple occasions following

6

their meeting. Defendants, however, abruptly cut off all communication with Be In and failed to

7

respond to Plaintiff's repeated emails.

8
9

58.

In the weeks immediately following Be In's meeting with Google, CamUp

experienced unusual, new traffic to its website, www.camup.com,from within the United Kingdom,

10

the areas ofPalo Alto and Mountainview, California, where Google is headquartered, and Seattle,

11

Washington, where Google engineers allegedly developed Hangouts. These new visits accounted for

12

a dramatic spike in traffic to CamUp,and the visits to CamUp from these locations were for a

13

substantially longer duration than the average CamUp visit.

14

59.

Upon information and belief, in the weeks immediately following Be In's meeting

15

with Google, Defendants and/or their employees, agents, and/or other individuals acting on their

16

behalf repeatedly accessed the CamUp website for the purpose ofcopying the CamUp platform

17

without permission, including the unique creative and expressive elements that were the hallmark of

18

CamUp.

19

60.

This conduct was in direct violation of CamUp's "Terms of Service," which

20

Defendants agreed to when they used and/or visited the CamUp website. At all relevant times,

21

CamUp's Terms of Service prohibited users and visitors from, inter alia, copying, reproducing,

22

exploiting or distributing the content ofthe CamUp website without consent, and from using the

23

website in "any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or

24

effect."

25

61.

Upon information and belief, following Plaintiff's meeting with Google in May,2011,

26

Defendants and/or their employees, agents, and/or other individuals acting on their behalf used and/or

27

visited the CamUp website for the purpose of, or with the result of, copying individual expressive

28

elements and the overall design of CamUp to create a competing social entertainment consumption

Gibson, Dunn &
Cmtcher LLP

14
SECOND AMENDED COMPLAINT
Case No. 5:12-CV-03373-LHK

15

1

platform, Hangouts, and for the purpose of, or with the result of, furthering Defendants'

21 misappropriation of Plaintiff's confidential, proprietary information.
3

Goole Launches Hangouts, A Blatant Copv of CamUp
62.

4

Less than two months after Be In's meeting with Google in London, on or about June

5

28,2011, Google launched an invitation only field test for Google+, its most recent, and ambitious,

6

attempt to create a social.network that could bring social functionality and context to its vast user

7

base—and compete with rival Facebook that had surpassed Google as the number one destination on

8

the Internet in 2010. On or about September 20,2011, Google+was made accessible to anyone 18

9

years of age or older.
63.

10

Within Google+, Google launched Hangouts, a social entertainment consumption

11

platform virtually identical to CamUp,that encouraged users to "hangout" with up to nine friends in a

12

trusted video environment, simultaneously viewing media while, at the same time, chatting and

13

collaborating around a central, shared entertainment experience. The creative and expressive

14

elements of Hangouts at the time oflaunch were strikingly similar to CamUp:

TS

//

16

//

17

//

18
19
20

//

21

//

22

//

23

//

24

//

25

//

26 I

//

27

//

28

//

Gibson, Dunn &
Crutcher LLP

15
SECOND AMENDED COMPLAINT
Case No. 5:12-CV-03373-LHK

16

1
2
3
4
S
6
~

7

~~

:::~..,.
,,

8
9
10
11
12
13
14
15
16
17
18

64.

The design ofHangouts was virtually indistinguishable from CamUp's. Like CamUp,

19

Hangouts featured a large, central frame, for viewing shared media, and up to ten smaller video

20

frames, organized in a single row across the bottom ofthe page, for everyone participating in the

21

"hangout." Frames above and to the sides ofthe central media frame included a text chat window,

22

and, upon information and belief, as shown below, in later versions of Hangouts, a playlist, which,

23

like the shared playlist in CamUp,could be modified and contributed to by all participants.

24

U

25

//

26

//

27

//

28

//

Gibson, Dunn &
Crutchar LLP

16
SECOND AMENDED COMPLAINT
Case No. 5:12-CV-03373-LHK

17

1
2
3
4
5
6
7
8
fir.

9
10

65.

,~~

~-.:,.-w..w~~■~ ~-sa ~ ~

,~.: ~_

~~~:

Participants could watch videos together, and, in later versions, view images and

11

documents and work on projects together, as in CamUp. The two platforms also shared a very

12

similar invitation process whereby a user could invite his or her friends from within the platform's

13

community.

14

66.

The frames for each ofthese features in Hangouts were in similar proportions to those

15

in CamUp. The large, central frame for viewing shared media, for example, occupied dominant

16

visual space, elevating the shared entertainment experience over one on one communication. The

17

chat frame was smaller, more vertically rectangular, and to the side ofthe central frame, and the

18

webcam frames were much smaller, and immediately adjacent to one another under the central frame.

19

In both platforms, the company logos were positioned in the top left corner. The button icon designs

20

were large and bulky. The "free seat" icon—the icon for an available seat in the session for another

21

participant to join—was identical, a dark grey silhouette against a light gray background. Even the

22

grey and white color scheme of CamUp was duplicated in Hangouts.

23

67.

Remarkably, Google claimed publicly that it took its engineers less than one day to

24

create Hangouts—the feature of Google+ that industry critics credit with the success ofthe new

25

social network. Indeed, despite Hangouts' obvious and substantial creative similarity to CamUp,the

26

technical execution suggested Hangouts was the product ofa hurried process. For example, unlike

27

CamUp,in order to use Hangouts users were required to download and install a Hangouts plugin on

28

their computer.

Gibson, Dunn &
Crutcher LLP

17
SECOND AMENDED COMPLAINT
Case No. 5:12-CV-03373-LHK

~$

1

68.

Following its launch, Google touted Hangouts as far more than just avideo-chat

2

service: "We use video-conferencing as an important element of it; but the whole serendipitous, run

3

across a hangout,jump in, people flowing in and out. To me that's the essence of hangouts. The

4

video is just one important element ofit-but it's a whole different construct."

5

69.

Media reports hail Hangouts as the "key component of Google+,""Google's sharpest

6

edge over Facebook's current product," the new social network's "killer feature." A leading

7

technology industry media outlet said that "nailing an intimate experience that supports two or more

8

people in a video conference is no small feat, but Google knocked it out ofthe park with Hangouts...

9

.It's more than just one-on-one chat though, which is why Hangouts are so magical."

10

Google Integrates Handouts Into YouTube Using Be In's Proprietary Strategies

11

70.

One month later, on or about August 18, 2011, Google integrated Hangouts(and, thus,

12

Google+)into YouTube, using the precise mechanism and strategy devised by Be In and disclosed to

13

Google during the May,2011 meeting. When a YouTube user clicked the "Share" button under any

14

YouTube video, an icon appeared inviting the user to "Watch with your friends. Start a Google+

15

Hangout"—the precise language and concept Be In disclosed confidentially to Google. Clicking the

16

button initiated an instant Hangouts media-sharing session.

17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

18
SECOND AMENDED COMPLAINT
Case No. 5:12-CV-03373-LHK

19

71.

1
2

Upon information and belief, Defendants have since altered the appearance ofthe

button, to remove the exact language disclosed by Be In to Google in May,2011.

3

72.

Critically—and as Be In had forecasted to Google—by misappropriating Be In's

4

social entertainment integration strategy and integrating Hangouts into YouTube, Google for the first

5

time gained traction with a social network, by drawing the YouTube user base into Google+ and a

6

shared viewing experience.
73.

7

Industry commentators noted the genius behind Google's integration ofHangouts into

8

YouTube (the very strategy Be In had disclosed to Google), as a way to attract users to its social

9

platform. The day after the "Watch with your friends" button was added, one industry watcher

10

explained that"To provide a real alternative to Facebook,[Google] will need to get so-called regular

11

users hooked on the service as well. Hooking into YouTube and providing video chat functionality

12

that wasn't previously available—and isn't available on competitors like Facebook—is one way to do

13

so."

14

74.

Thereafter, Google continued to rollout the precise strategy Be In had shared with

15

Google in confidence, along with additional unique design elements created by Be In in CamUp. On

16

or about September 20,2011, Google announced the launch ofan On Air feature within Hangouts

17

allowing for public broadcasts that anyone can tune into, with the capability to record the broadcasts.

18

The same day, Google announced "Extras," a feature that allows users to collaborate on documents in

19

Google Docs, share a sketchpad, share their screens with other users, and name their Hangouts.

20

")
(
Google also announced the release ofa Hangouts Application Programming Interface "API

21

allowing developers to create applications or "apps" to run on the Hangouts platform. Later versions

22

also allowed for virtual avatars, and designating a room as public or private.

23
24
25

75.

On or about June 14, 2012, YouTube announced the YouTube application for

Hangouts that allows for video playlists that can be modified by any participant.
76.

Since the Hangouts launch, Google has pursued collaborations with a number of

26

education-oriented partners and has marketed Hangouts as a tool for students and educators, another

27

strategy disclosed by Be In to Google in confidence. Google has also facilitated the development of

28

commercial "channels" through a combination of YouTube and Hangouts functionality.

Gibson, Dunn &
Crutcher LLP

19
SECOND AMENDED COMPLAINT
Case No. 5:12-CV-03373-LHK

20

1

77.

The features, strategies, and collaborations undertaken by Google since the launch of

2

Hangouts constitute the misappropriation and unauthorized use of Be In's trade secrets disclosed

3

during its May,2011 meeting with Google.

4

78.

Following Google's introduction of Hangouts,Be In saw a precipitous drop in what

5

had been, up to that point, a modest, but steadily increasing, user base. While Be In has continued to

6

conduct meetings with potential investors and/or partners in connection with CamUp,interest in Be

7

In's social entertainment consumption platform has waned since Google's introduction of Hangouts,

8

a blatant(but inferior) copy of CamUp. In addition, entities that previously had expressed significant

9

interest in integrating CamUp into their platforms (to the point of developing product specifications)

10

suddenly terminated their dealings with Be In, citing partnerships with Google and Google's

11

discomfort with Be In's dispute with the company. Notably, in at least one case, a potentially

12

significant partner suggested that they had been informed by Google about this dispute, before this

13

lawsuit was filed.

14

79.

Plaintiff initiated this action on June 28,2012 to halt Defendants' continued copying,

15

use, and misappropriation ofits valuable trade secrets and intellectual property rights, which has

16

caused substantial and irreparable harm to Be In and its intellectual property.

17

FIRST CAUSE OF ACTION

1~

Misappropriation of Trade Secrets(Cal. Civil Code § 3426,et seq.)

19

Against All Defendants

20
21 '
22

80.

Plaintiff realleges, and incorporates by reference, each and every allegation set forth in

paragraphs 1 through 78, inclusive.
81.

Plaintiff's confidential proprietary business and marketing strategies, including its

23

strategy for integrating CamUp's social platform into YouTube, other Google products, and third-

24

party apps, to fuel social adoption and engagement on Google, constitute information that has

25

independent economic value because they are unknown to others, and are the subject of reasonable

26

efforts to maintain its secrecy and/or limit its use and, accordingly, are trade secrets within the

27

meaning ofthe California Uniform Trade Secrets Act, California Civil Code section 3426, et seq.

"CUTSA").
28 (
Gibson, Dunn &
Crutcher LLP

20
SECOND AMENDED COMPLAINT
Case No. 5:12-CV-03373-LHK

21

1
2
3

82.

Defendants have acquired, disclosed, and/or used or intend to use Plaintiff's trade

secrets through improper means.
83.

Defendants' misappropriation of Plaintiffs' trade secrets has damaged Plaintiff and/or

4

unjustly enriched Defendants in an amount not yet ascertained, but which will be determined

5

according to proof, including by depriving Plaintiff of participation in revenues and profits

6

Defendants have earned through such misappropriation and by depriving Plaintiff ofrevenues,

7

partnerships, customers and profits that it otherwise would have earned. See Cal. Civ. Code. §

8

3426.3.

9

84.

Upon information and belief, Defendants' misappropriation of Plaintiffls trade secrets

10

was willful and malicious and, accordingly, Plaintiff is entitled to exemplary damages, and to recover

11

its reasonable attorney's fees and costs. See Cal. Civ. Code §§ 3426.3, 3426.4.

12

85.

Defendants' actions have caused and will continue to cause irreparable injury to

13

Plaintiff unless enjoined by this court. Plaintiff has no adequate remedy at law. Accordingly,

14

Plaintiff is also entitled to injunctive relief pursuant to California Civil Code sections 3426.2.
SECOND CAUSE OF ACTION

15

Copyright Infringement(Copyright Act, 17 U.S.C.§§ 101 et seq.)

16
17
18
19
20

Against Google,Inc. and YouTube
86.

Plaintiff realleges, and incorporates by reference, each and every allegation set forth in

paragraphs 1 through78, inclusive.
87.

Plaintiff is the owner of all right, title and interest in the original media platform

21

CamUp. Be In has obtained a copyright registration from the United States Copyright Office for

22

registration ofits copyright in the CamUp work and platform. Reg. No. TX-7-567-462. A true and

23

correct copy ofthe certificate ofregistration is attached hereto as E~ibit A.

24

88.

Google and YouTube had access to Plaintiff copyrighted work, through mutual
s

25

participation and communications with Plaintiff at various technology conferences and as a result of

26

Plaintiff's meeting with Google in May,201 1. In addition, upon information and belief, Defendants

27

accessed Plaintiff's work by using and/or visiting www.camup.com.

28
Gibson, Dunn &
Crutcher LLP

21
SECOND AMENDED COMPLAINT
Case No. 5:12-CV-03373-LHK

22

1

89.

Upon information and belief, Google and YouTube have infringed and continue to

2

infringe Plaintiffls copyrights in its social entertainment consumption media sharing platform,

3

CamUp,including its individual expressive elements and its overall design, and/or have committed

4

and continue to commit acts of contributory and/or induced infringement, by (i) reproducing

5

Plaintiffs' copyrighted work;(ii) publishing the work on the Internet under the name Google

6

Hangouts,(iii) offering the work to millions of users to use through YouTube and Google's social

7

network, Google+; and (iv)creating unauthorized derivative works through the Hangouts product.

8
9
10

90.

As a result ofthe foregoing activities, Google and YouTube are liable to Plaintiff for

copyright infringement, contributory infringement, and/or induced infringement.
91.

By reason of Google and YouTube's actions, Plaintiff has suffered, and will continue

11

to suffer, substantial damage.to its business, as well as losses in an amount not yet ascertained, but

12

which will be determined according to proof. In addition to Plaintiff's actual damages, Plaintiff is

13

entitled to receive the profits made by Google and YouTube from their wrongful acts, pursuant to 17

14

U.S.C. § 504.

15

92.

Google and YouTube's conduct has caused and will continue to cause irreparable

16

injury to Plaintiff unless enjoined by this court. Plaintiff has no adequate remedy at law.

17

Accordingly, Plaintiff is entitled to injunctive relief pursuant to 17 U.S.C. § 502.

Breach ofImplied

19 ',

22
23

Fact Contract

Against All Defendants

20
21'

in

THIRD CAUSE OF ACTION

18

93.

Plaintiff realleges, and incorporates by reference, each and every allegation set forth in

paragraphs 1 through78, inclusive.
94.

Plaintiff has devoted extensive time, resources and ingenuity in developing CamUp,a

24

unique social entertainment consumption platform, as well as strategies for integrating CamUp with

25

third party content partners.

26
27

95.

Plaintiff disclosed its valuable, proprietary business and marketing strategies to

Defendants, including its social media integration strategy, in confidence, on the condition that they

28
Gibson, Dunn &
CrutcherLLP

22
SECOND AMENDED COMPLAINT
Case No. 5:12-CV-03373-LHK

23

1

would utilize those confidential strategies only if, and when,they licensed the CamUp platform from

2

Be In, thereby compensating Be In for the value ofthose proprietary business strategies.

3

96.

Defendants voluntarily accepted the disclosure ofPlaintiff's proprietary business

4

strategies, knew,or should have known,the conditions on which those confidential business

5

strategies were disclosed, and knew the reasonable value ofthose confidential business strategies.

6

97.

In breach ofthat mutual understanding, Defendants have actually used, and upon

7

information and belief intend to continue to use, confidential and proprietary business and marketing

8

strategies developed by Be In in connection with its social entertainment platform, CamUp,for the

9

benefit ofDefendants. Defendants have not licensed CamUp.

10

98.

By reason of Defendants' actions, Plaintiff has sustained and will continue to sustain

11 ~ substantial injury, loss, and damage in an amount not yet ascertained, but which will be determined
12

according to proof.

13

FOURTH CAUSE OF ACTION

14

Breach of Contract

15

Against All Defendants

16
17
18

99.

Plaintiff realleges, and incorporates by reference, each and every allegation set forth in

paragraphs 1 through78, inclusive.
100.

The home page of www.camup.com includes a link to CamUp's"Terms of Service."

19

At all relevant times, the Terms of Service posted on CamUp's website stated, under the heading

20

"Your Acceptance," the following: "By using and/or visiting this Website (collectively, including all

21

content and functionality available through the CamUp.com domain name,the "CamUp Website", or

22

"Website"), you signify your agreement to these Terms of Use,[and] CamUp's Privacy Policy..."

23

and "If you do not agree to any ofthese Terms of Use, or the CamUp Privacy Policy, you must

24

discontinue use ofthe CamUp Website immediately."

25
26
27
28
Gibson, Dunn &
Crutcher LlP

101.

At all relevant times, the Terms of Service restricted and conditioned use of CamUp as

follows:
The content on the CanzUp Website, except all User Submissions(as defined below),
including without limitation, the text, software,scripts, graphics,photos,sounds, music,
(
videos, interactivefeatures and the like "Content") and the trademarks, service marks and
23
SECOND AMENDED COMPLAINT
Case No. 5:12-CV-03373-LHK

24

6

102.

At all relevant times, the Terms of Service also provided,

alia,

4

inter

2

(
logos contained therein "Marks"), are owned by or licensed to CamUp,subject to copyright
and other intellectual property rights under the law. Content on the Website is provided to
you AS ISfor your information and personal use only and may not be downloaded, copied,
reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise
exploitedfor any other purposes whatsoever without the prior written consent ofthe
respective owners CamUp reserves all rights not expressly granted in and to the Website and
the Content.
that by using

7

and/or visiting the CamUp Website,"[y]ou agree":"not to distribute in any medium any part of the

8

CamUp Website without CamUp's prior written authorization";"to not engage in the use, copying, or

9

distribution of any ofthe Content other than expressly permitted herein, including any use, copying,

10

or distribution of User Submissions ofthird parties obtained through the Website for any commercial

11

purpose" and that "[y]ou may not use" the Website in "any way that is unlawful or fraudulent, or has

12

any unlawful or fraudulent purpose or effect."

13

103.

Upon information and belief, following Plaintiff's meeting with Google in May,2011,

14

Defendants and/or their employees, agents, and/or other individuals acting on their behalf used and/or

15

visited the CamUp website for the purpose of, or with the result of, copying, downloading,

16

reproducing, distributing or exploiting portions ofthe CamUp Website and Content(as defined in the

17

Terms of Service)for commercial purposes and without authorization from CamUp,to develop and

18

launch Hangouts.

19
20
21

104.

Defendants' conduct was for commercial purposes and was not authorized, and it

therefore breached CamUp's Terms of Service.
105.

By reason ofDefendants' actions, Plaintiff has sustained and will continue to sustain

22

substantial injury, loss, and damage in an amount not yet ascertained, but which will be determined

23

according to proof.

24

PRAYER FOR RELIEF

25

WHEREFORE,Plaintiff respectfully requests that this Court grantjudgment against

26
27
28
Gibson, Dunn &
Crutcher LLP

Defendants on the counts detailed above and issue the following relief:.
1. Preliminary injunction prohibiting Defendants and any other persons or entities acting in
concert with Defendants from disclosing, exploiting or utilizing Plaintiff's confidential, strategic
24
SECOND AMENDED COMPLAINT
Case No. 5:12-CV-03373-LHK

25

11 business and marketing plans disclosed to Google in May,2011, including, but not limited to,
2

Plaintiff's social integration product and marketing strategy;

3

2. Permanent injunction prohibiting Defendants and any other persons or entities acting in

4

concert with Defendants from disclosing, exploiting or utilizing Plaintiffls confidential, strategic

5

business and marketing plans disclosed to Google in May,2011, including, but not limited to,

6

Plaintiff's social integration product and marketing strategy;

7

3. Preliminary injunction prohibiting Defendants and any other persons or entities acting in
concert with Defendants from engaging in future acts of infringement, contributory infringement

9

and/or induced infringement ofPlaintiff copyrights in it is CamUp platform, including by

10

s

8

prohibiting Google from offering or utilizing its Hangouts platform;

11

4. Permanent injunction prohibiting Defendants and any other persons or entities acting in

12

concert with Defendants from engaging in future acts of infringement, contributory infringement

13

and/or induced infringement ofPlaintiff's copyrights in it is CamUp platform, including by

14

prohibiting Google from offering or utilizing its Hangouts platform;

15

5. An accounting of any and all profits ofDefendants attributable to its wrongful acts;

16

6. Monetary damages adequate to compensate Plaintiff for Defendants' acts oftrade secret

17

misappropriation, copyright infringement, breach ofimplied contract, breach of contract, breach of

18

confidence and unfair competition, including actual and exemplary damages and lost profits, in an

19

amount greater than $75,000.00;

20

7. Plaintiff's attorney's fees;

21

8. Plaintiff's costs of suit herein incurred;

22 '.

9. Prejudgment and postjudgment interest; and

23

10. Such other and further relief, including all available monetary and equitable relief, as the

24

case may require and this Court deemsjust and proper.
DEMAND FOR JURY TRIAL

25
26
27

Plaintiff Be In, Inc. hereby demands a trial by jury of all issues so triable pursuant to Rule 38
ofthe Federal Rules of Civil Procedure.

28
Gibson, Dunn &
Crotchet LLP

25
SECOND AMENDED COMPLAINT
Case No. 5:12-CV-03373-LHK

26

1

Dated: April 30, 2013

2

Respectfully submitted,
GIBSON,DUNK & CRUTCHER LLP

3
/s/
S. Ashlie Beringer

By:
4
5

Attorneys for Plaintiff
BE IN,INC.

6
7
ATTESTATION PURSUANT TO LOCAL RULE 5-1(i)(3)
8
9
10

I, KatieLynn Townsend, hereby attest that concurrence in the filing ofthis document has been
obtained from the signatory.

11
By: /s/
KatieLynn Townsend

12
13
14
15
16
17
18
19
20
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22
23
24
25
26
27
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Gibson, Dunn &
Crutcher LAP

26
SECOND AMENDED COMPLAINT
Case No. 5:12-CV-03373-LHK

2~

EXHIBIT B

Townsend. Katie
From:
Sent:
To;
Cc:
Subject:

Townsend, Katie
Tuesday, April 30, 2013 9:27 PM
'Bal, Colleen'
Graves, Charles Tait; Barsky, Wayne; Maute,Jeana Bisnar, Beringer, S. Ashfie
RE: Be Tn v. Google,Inc. - Proposed Second Amended Complaint

Colleen: For obvious reasons, Plaintiff cannot agree to a stipulation that ties the time within which defendants have to
respond to the Second Amended Complaint to the date when "all defendants" have been served with it(and also gives
defendants an additional three weeks to respond) when Plaintiff does not know what the practical effect of that
stipulation will be (because you refuse to tell us what parties, if any, other than Google, Inc. you will be accepting service
on behalf ofd. This language was proposed by you,for the first time, this morning, and we think it is a substantial
overreach. We will proceeding by way of a motion for leave to file an amended complaint.

Katie Townsend

GIBSQN DUNN
Gibson, Dunn & Crutcher LAP
333 South Grand Avenue, Los Angeles, CA 90071-3197
Tel [phone]•Fax [phone]
[e-mail] •www.gibsondunn.com

From: Bal, Colleen [mailto:[e-mail]]
Sent: Tuesday, April 30, 2013 8:44 PM
To:Townsend, Katie
Cc: Graves, Charles Tait; Barsky, Wayne; Maute, Jeana Bisnar; Beringer, S. Ashlie
Subject: RE: Be In v. Google, Inc. - Proposed Second Amended Complaint
Katie,

As we stated in our prior email, we are willing to stipulate in conjunction with agreement on the
extension. Please provide your agreement to that proposal. We are not willing to put off to a later day
discussions regarding the terms of an extension or extensions.
Colleen
WILSON SONSINI GOODRICH & ROSATI, P.C.
1 Market Street
Spear Tower,Suite 3300
San Francisco, CA 94105
650.320.3708

From: Townsend, Katie[mailto:KTownsendCa~gibsondunn.coml
Sent: Tuesday, April 30, 2013 8:08 PM
2s

To: Bad, Colleen
Cc: Graves, Charles Tait; Barsky, Wayne; Maute, Jeana 6isnar; Beringer, S. Ashlie
Subject: RE: Be In v. Google, Inc. - Proposed Second Amended Complaint
Colleen: Since it is getting late in the day, we think it makes sense for the parties to get a stipulation agreed to and on
file that does not address extensions of time for any party, and for us to address the service/briefing schedule issue
separately. Plaintiff is not apposed to giving defendants an extension of time to respond to the Second Amended
Complaint. However, it appears that there are issues that the parties need to discuss further with respect to that
point. Accordingly, attached is a draft stipulation which makes no reference to any extensions of time, but does include
the revisions you proposed which I indicated. earlier plaintiff is not opposed to. Let us know.if you are amenable to this
approach/this stipulation.

Katie Townsend

G.II~SON DUNK
Gibson, Dunn & Crotchet LLP
333 South Grand Avenue, Los Angeles, CA 90071-3197
Tel [phone] •Fax [phone]
[e-mail] • www.gibsondunn.com

From: Bal, Colleen fmailto:cba~Ca~wsgr.coml
Sent: Tuesday, April 30, 2013 7:33 PM
To: Townsend, Katie
Cc: Graves, Charles Tait; Barsky, Wayne; Maute, Jeana Bisnar; Beringer, S. Ashlie
Subject: RE: Be In v. Google, Inc. - Proposed Second Amended Complaint
Katie,

For the second time in 2 days you have changed your position on the terms. of the proposed
stipulation, this time with respect to a claimed "assumption" that you admittedly never told
us about. We remain open to the stipulation as we proposed: that all named Defendants as
well as Plaintiff have extra time, and that the named Defendants' response dates run
concurrently. We believe that the Court would prefer a concurrent response schedule.
At this point, it is obviously too late to try to reach any agreement regarding service on
Google UK.
Finally, 'as we stated previously; Google Inc. will of course abide by its discovery
obligations. While you appear to suggest otherwise, there is no basis for that suggestion.
Colleen.

WILSON SONSINI GOODRICH & ROSATt, P.C.
1 Market Street
Spear Tower,Suite 3300
San Francisco, CA 94105 .
650.320.3708

2

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._.~.__,___...~.__.~..m._.~......,._...,.._ _.._......~..._~_.....~._. ~._
From: Townsend, Katie[mailto:KTownsend gibsondunn.coml
Sent: Tuesday, Apri130, 2013 5:28 PM
To: Bal, Colleen
Cc: Graves, Charles Tait; Barsky, Wayne; Maute, Jeana Bisnar; Beringer, S. Ashlie
Subject: RE: Be In v. Google, Inc. - Proposed Second Amended Complaint
Colleen:
We have reviewed your proposed changes to the draft stipulation and are fine with them, with one exception: that each
Defendant's deadline to "answer, move,or otherwise respond to the Second Amended Complaint" will be "calculated as
of the date when service is effectuated upon all defendants named in the Second Amended Complaint." We had
.assumed that you would be accepting service on behalf of all defendants named in the SAC. We still assume,at a
minimum,that you will be accepting service for Google, Inc., who we do not think should get the benefit of any delay
that would result if Plaintiff is required to effect personal service on YouTube, LLC or Google UK. If it is your position
that you will not accept service for YouTube, LLC and/or Google UK, both of which are Google, Inc. subsidiaries, please
let us know,as we would limit our agreement accordingly (i.e. our agreement to extend Defendants' deadline to
respond to the Second Amended Complaint will extend only to Google, Inc. if that is the only party for whom you will
accept service). Once you let us know which parties you will accept service for, we will circulate a revised version of the
stipulation. Alternatively, we can take the agreement with respect to timing out of the stipulation and address it
separately after the parties have had an opportunity to work through that issue.
With respect to your points 2 and 3, below, Plaintiff has not altered its original proposal, which related to the inclusion
of specific defendants in the SAC, was intended to facilitate discovery(and ensure that Be In would not be prejudiced by
not including those defendants), and was not intended to alter any substantive rights that Plaintiff has(including its right
to seek to amend to add those defendants in the future if necessary). Because Plaintiff is adding Google UK as a
defendant, it will not be naming Mr. Robinson as a defendant at this time (without prejudice to its right to amend to
name him as a defendant in the future). We note, however,that Google and Mr. Robinson have ongoing preservation
and discovery obligations relating to Mr. Robinson's involvement in the factual events addressed in the pleadings, which
are in noway altered by PlaintifYs decision not to name Mr. Robinson as a defendant in its Second Amended
Complaint
Finally, while Be In is unwilling to forfeit its substantive rights as to Google UK, it remains willing to remove Google UK
from the proposed Second Amended Complaint upon Google Enc.'s stated agreement that it will treat Google UK as
within the scope of its discovery obligations. Because Google, Inc. has an obligation to produce all relevant data in its
possession, custody and/or control, including data in the possession of foreign subsidiaries,like Google t1K, we do not
believe that this proposal asks Defendants to incur any obligations that they do not already have. However,to the
extent Google, Inc. is unwilling to confirm its intent to collect materials from Google UK,as appears to be the case,
Plaintiff will proceed with including Google UK as a party in its proposed Second Amended Complaint.

Katie Townsend

Gibson, Dunn & Crutcher LLP
333 South Grand Avenue, Los Angeles, GA 90071-3197
Tel [phone] •Fax [phone]
[e-mail] • wvuw.gibsondunn.com

r.,~...,.W.,_.._.w~_.~..._...._...... ,

From: Bal, Colleen [mailto:[e-mail]]
Sent: Tuesday, April 30, 2013 10:33 AM
To: Townsend, Katie,
30

Cc: Graves, Charles Tait; Barsky, Wayne; Maute, Jeana Bisnar; Beringer, S. Ashlie
Subject: RE: Be In v. Google, Inc. - Proposed Second Amended Comp{aint
Katie, here is Defendants' response to the email you sent yesterday:
1. We will agree to the filing of the amended complaint subject to Defendants' reservation of
all rights, defenses and objections. The agreement will not affect any Defendant's right to
move to dismiss the proposed second amended complaint on any ground. Nor will it
constitute a waiver of any defense, objection or argument, including but not limited to lack
of subject matter jurisdiction, lack of personal jurisdiction, failure to state a claim,improper
venue, insufficiency of process,failure of service of process, lack of Rule 11 basis, or
impropriety of naming any party to the case. We will also agree to the mutual deadline
extensions, i.e., that Defendants shall have 21 extra days to respond to the complaint,from
the deadline calculated under the applicable rules(counting from the date' when service is
effectuated upon all Defendants) and that Plaintiff will have 10 extra days to respond to any
motion to dismiss. Please prepare #or our review a stipulation reflecting all of these.terms.

2. As we noted in our original response to your discovery proposal, Mr. Robinson would agree
"to respond to requests for production of documents and to a request for a deposition as if
he were a named defendant in the case, on the conditions that(1)the deposition be at a
location of his choice {which would be the San Francisco Bay Area or Landon, depending on
his schedule), and (2) Be In (and any related parties} must agree that it will not now nor at
any time in the future Warne him as a defendant in this or any related action." Pursuant to
the email you sent yesterday, Plaintiff has now changed its proposal in a material
way: Plaintiff now seeks to retain a unilateral right to name Mr. Robinson as a defendant at
any time in the future. In other words,the "agreement" that you propose is
illusory. Although Plaintiff now complains that agreeing not to name Mr. Robinson would
constitute a "waive[rj of substantive claims," that was in fact Plaintiff's own,original
proposal. In any event, Mr. Robinson cannot and will not agree to your new proposal.

3. With respect to Google UK, you also previously offered not to name it as a defendant in the
action if Google UK agreed to provide certain discovery. Please clarify whether, even if we
reach an agreement that you will not name Google UK as a defendant, you would claim the
same- unilateral right as you are now claiming with respect to Mr. Robinson,to name Google
UK as a defendant in the future.
Whether or not there is an agreement on this issue, Google Inc. will of course produce
documenfis in its custody and control that are relevant, responsive and nonprivileged.

We look forward to your response. Let us know if you have any questions or would like to discuss in
person.
Regards,
31

Colleen
WILSON SONSINI GOODRICH & ROSATi, P.C.
1 Market Street
Spear Tower, Suite 3300
San Francisco, CA.94105
650.320.3708
From:Townsend, Katie ~mailto:KTownsend gibsondunn.coml
Sent: Monday, April 29, 2013 2:19 PM
To: Bat, Colleen
Cc: Graves, Charles Tait; Barsky, Wayne; Maute, Jeana Bisnar; Beringer, S. Ashlie
Subject: RE: Be In v. Google, Inc. - Proposed Second Amended Complaint
Thank you, Colleen. We have reviewed Defendants' response, and address each point raised in Defendants' response
immediately below:
1. Plaintiff is willing to agree that if Defendants stipulate to the filing of the proposed second amended complaint it
will be expressly without prejudice to Defendants' rights or defenses, asset forth in paragraph 1.(a) in
Defendants' response, and is willing to agree to an extension of Defendant's deadline to respond to the
complaint of 21 days, asset forth in paragraph 1.(b) in Defendants' response. In light of Plaintiff's willingness to
agree to a substantial extension of time for Defendants to respond to the SAC, we would also request that, in
the event Defendants move to dismiss the 5AC,that Defendants would agree to an extension of Plaintiff's time
to oppose that motion of ten days(10 days).
2. Plaintiff is willing to agree that if Richard Robinson responds to any requests for production of documents and
other written discovery requests as though he were a named defendant located within the U.S., and agrees to
respond to any deposition notice/subpoena as though he were a named defendant located within the U.S., .
Plaintiff will not name him as a defendant in the SAC. In connection with that agreement, Plaintiff is also willing
to agree that Robinson's deposition will be at a location of his choice (either in the San Francisco Bay area or in
London). Plaintiff has proposed this agreement in good faith, and does not have any present intention to amend
again to add Mr. Robinson as an individual defendant in this matter if Defendants agree to this
proposal. However, Plaintiff cannot agree to waive any substantive claims it may have against Mr. Robinson
either now or in the future. Please advise if Defendants are willing to agree to this proposal as set forth herein
(i.e. not conditioned on any waiver of any of Plaintiff's substantive rights). As I believe we indicated during our
call, the purpose of this proposal was to facilitate discovery in this matter and ensure that our client would not
be procedurally disadvantaged were it to agree not to name Mr. Robinson as an individual defendant. Because
Mr. Robinson is currently a defendant in this matter, we view this issue as severable from the issue of whether
or not Defendants will ultimately stipulate to the filing of the proposed SAC. Accordingly, Plaintiff would like to
(and believes the parties can) reach an agreement as to this issue even if, for example, Defendants refuse to
stipulate to the filing of the proposed SAC and, conversely, even if Defendants refuse to agree to this proposal,
that does not preclude Defendants(including Mr. Robinson)from stipulating to the filing of the proposed SAC.
3. Finally, as we indicated in our initial discussion and email concerning Plaintiff's proposal, it is our understanding
that Google UK is currently, and has been at all relevan# times, Mr. Robinson's direct employer. There is nothing
even remotely "potentially [] sanctionable" about naming all of the entities that Mr. Robinson was acting on
behalf of in his contacts with Be In as defendants in this matter. Indeed, we think it quite reasonable to do so,
regardless of whether Google UK was or was not "previously named in the action." Accordingly, Plaintiff
remains willing to agree that it will not separately name Google UK in its proposed second amended complaint if
Google Inc. agrees that it will treat Goggle UK as within the scope of its discovery obligations in connection with
this matter (for example,that it will respond to any requests for production of documents directed to Google,
Inc. by providing responsive material and information from Google UK). If Defendants are unwilling to do so, as
Kea

it appears they are, Plaintiff will be required to name Google UK as a separate defendant in this action. As of
now, we understand Defendants' response to indicate that(1) na defendant will stipulate to the filing of a
proposed SAC that names Googie UK as a separate defendant, and (2)that Goggle, inc. refuses to agree to
Plaintiff's proposal that it provide discovery from Google UK in this action,so that Plaintiff would not be
procedurally disadvantaged were it to agree not to name Google UK as a separate defendant in the SAC. Please
confirm that this is the position that Defendants are taking.
We ask that you let us know definitively as soon as possible whether YouTube, LLC or any current defendant is willing to
stipulate to the filing of the proposed SAC and whether Defendants are willing to agree to either(or neither) of the two
discovery-facilitating proposals made by Plaintiff concerning Google UK and Mr. Robinson. let us know if you wish to
discuss any aspect of this email in more detail.
Thank you.

Katie Townsend

GIBS{)N DUNN
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue, Los Angeles, CA 90071-3197
Tel [phone] ~ Fa~c +1 213.229.6390
[e-mail] • www.gibsondunn.com

From: Bal, Co{leen (mailto:[e-mail]
Sent: Friday, April 26, 2013 12:48 PM
To: Townsend, Katie
Cc: Graves, Charles Tait; Barsky, Wayne; Maute, Jeana Bisnar; Beringer, S. Ashlie
Subject: RE: Be In v. Google, Inc. - Proposed Second Amended Complaint
Katie,
Here is Defendants' response to the proposed second amended complaint and your related discovery proposal:
1. Google Inc. and YouTube, LLC will stipulate that Be In is permitted to file the proposed second amendment
complaint, but only:
expressly without prejudice to Defendants' rights or defenses. The stipulation does not affect any
Defendant's right to move to dismiss the proposed second amended complaint on any ground. Nor does it
constitute a waiver of any defense or abjection, including but not limited to defenses for lack of subject
matter jurisdiction, lack of personal jurisdiction, failure to state a claim, improper venue,sufficiency of
process or service of process; and
b. upon Plaintiff's agreement to extend Defendants' deadline to move,answer ar otherwise respond to the
complaint by 21 days after the deadline calculated under applicable rules.
2. Richard Robinson will agree to respond to requests for production of documents and to a request for a
deposition as if he were a named defendant in the case, an the conditions that(1)the deposition be at a
location of his choice (which would be the San Francisco Bay Area or Landon,depending on his schedule), and
(2) Be In (and any related parties) must agree that it will not now nor at any time in the future name him as a
defendant in this or any related action. The agreement by Be In (and related parties) must be enforceable by
injunction, and with the prevailing party to recover its attorney's fees.
33

3. There is no reasonable basis to name Google UK as a defendant in this action. Google UK was not previously
named in the action; it is not apparent from your proposal the basis or claims on which you would seek to add it
as a defendant; and we believe adding it as a defendant would potentially be sanctionable. Googfe UK will not
enter any agreement with respect to the proposed second amended complaint or discovery in this action.
Let me know if you have questions or would like to discuss.
Regards,
Colleen

WILSON SONSINI GOODRICH &. ROSATI, P.C.
1 Market Street
Spear Tower,Suite 3300
San Francisco, CA 94105
650.320.3708
mailto:KTownsend(c~gibsondunn.com]
From:Townsend, Katie[
Sent: Monday, Apri122, 2013 9:31 PM
To: Bal, Colleen
Cc: Graves, Charles Tait; Barsky, Wayne; Maute, Jeana Bisnar; Beringer, S. Ashlie
Subject: Be In v. Google, Inc. - Proposed Second Amended Complaint
Colleen: Attached please find Plaintiff ee In's proposed second amended complaint. Please advise us as soon as
possible whether defendants will stipulate to permit the filing of it pursuant to Rule 15(a)(2) of the Federal Rules of Civil
Procedure, or will require plaintiff to seek {eave from the Court.
As discussed in our call this afternoon,this proposed SAC tentatively removes Richard Robinson as an individual
defendant, and does not assert claims against the entity that we understand to be (and to have been at all relevant
times) his direct employer, Google UK. PlaintifYs willingness to not name Mr. Robinson and Google UK as defendants in
this action is conditioned on Google's agreement to provide access to discovery from them as though they were named
parties located within the United States. In other words, we are seeking confirmation that Google will search for, and
produce, responsive, non-privileged material in Mr. Robinson's and/or Google UK's possession in connection with this
litigation, and make Mr. Robinson available for deposition, even if Mr. Robinson and Google UK are not named as
defendants. We believe that Judge Koh would require Google to inc{ude Goggle UK and Mr. Robinson within the scope
of its discovery obligations in any event, but we want to confirm that Google will not oppose or object to discovery from
these sources before Plaintiff foregoes an opportunity to name them as defendants. If you agree to this arrangement,
we will not name Mr. Robinson or Google UK as defendants in the SAC. We otherwise would expect to add them to the
proposed SAC before submitting it to the Court. If you wish to discuss this issue in any more detail, please let us
know. Thank you.
Katie Townsend

czBSO~v ~UN~
Gibson, Dunn 8~ Crutcher LLP
333 South Grand Avenue, Los Angeles, CA 90071-3197
Tel [phone] ~ Fax [phone]
[e-mail] • www.gibsondunn.com

34

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