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

Filing 59

SECOND AMENDED COMPLAINT against Google Inc., YouTube, LLC, GOOGLE UK LTD.. Filed byBe In, Inc.. (Barquist, Charles) (Filed on 6/10/2013) Modified text on 6/11/2013 (dhmS, COURT STAFF).

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1 2 3 4 5 6 7 8 9 10 CHARLES S. BARQUIST (BAR NO. 133785) CBarquist@mofo.com WENDY J. RAY (BAR NO. 226269) WRay@mofo.com MORRISON & FOERSTER LLP 707 Wilshire Blvd., Suite 6000 Los Angeles, California 90017-3543 Telephone: 213.892.5200 Facsimile: 213.892.5454 KENNETH A. KUWAYTI (BAR NO. 145384) KKuwayti@mofo.com MORRISON & FOERSTER LLP 755 Page Mill Road Palo Alto, California 94304-1018 Telephone: 650.813.5600 Facsimile: 650.494.0792 Attorneys for Plaintiff BE IN, INC. 11 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 SAN JOSE DIVISION 15 CASE NO. 5:12-CV-03373-LHK 16 BE IN, INC., a New York corporation, 17 Plaintiff, 18 19 20 21 v. GOOGLE INC., a California corporation, YOUTUBE, LLC, a Delaware limited liability company, and GOOGLE UK LTD., a private limited company registered in England and Wales, 22 Defendants. 23 24 25 26 27 28 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 SECOND AMENDED COMPLAINT FOR COPYRIGHT INFRINGEMENT, MISAPPROPRIATION OF TRADE SECRETS, BREACH OF IMPLIED CONTRACT AND BREACH OF CONTRACT DEMAND FOR JURY TRIAL 1 Plaintiff BE IN, INC. (“Be In” or “Plaintiff”), by and through its counsel of record, 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: 4 I. NATURE OF ACTION 5 1. Plaintiff, Be In, brings this action to halt the brazen and continued copying, use, and 6 misappropriation of its 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 of friends to simultaneously watch, listen, chat and collaborate around shared videos, music, 9 and other media, such as educational content and documents, in a real-time, trusted environment. 10 Since 2007, Be In has devoted extensive time, resources and ingenuity to creating the unique design, 11 technology and infrastructure for its platform, as well as proprietary strategies for integrating that 12 platform into established content, social and media platforms. 13 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 a high-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 22 social context around Google’s vast, anonymous user base. CamUp’s proprietary strategy and 23 business plans promised a new and ingenious opportunity for Google to compete, as it had been 24 unsuccessfully attempting to do, with Facebook in the arena of social media and analytics. 25 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 1 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 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 6 consumption platform that bears striking similarity to CamUp. Indeed, Hangouts is virtually identical 7 to CamUp. It allows groups of friends 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 created this type of social entertainment consumption platform. 11 5. The creative design of Hangouts is strikingly similar to CamUp’s unique design 12 elements in every respect—design, layout, look and feel, selection and arrangement of elements, 13 format, tag lines, and color scheme—leaving no doubt that Google slavishly copied the CamUp 14 platform in a hurried attempt to bolster its new social network, Google+. Hangouts is reportedly, by 15 far, the most popular feature of Google+ today, and business journalists have written repeatedly about 16 the critical importance of Hangouts 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 of the 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, 28 2 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 CamUp, for the benefit of Google and Hangouts, Google’s competing social entertainment 2 consumption platform. 3 7. In view of Defendants’ misappropriation of Plaintiff’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. 6 II. PARTIES 7 8 8. York with its principal place of business in New York City, New York. 9 10 Be In, Inc. is a corporation organized and existing under the laws of the State of New 9. Google, Inc. is a corporation organized and existing under the laws of the State of Delaware with its principal place of business in Mountain View, California. 11 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. 14 11. Upon information and belief, Google UK Ltd. is a company incorporated in England 15 and Wales, and is a wholly-owned subsidiary of Google, Inc. Upon information and belief, Google 16 UK Ltd. provides marketing, sales, and development services to Google and its other subsidiaries. 17 III. JURISDICTION AND VENUE 18 19 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). 20 13. This Court also has supplemental jurisdiction over Plaintiff’s state law claims under 21 28 U.S.C. § 1367, because they are so related to the federal claims that they form part of the same 22 case or controversy and derive from a common nucleus of operative facts. 23 24 14. This Court also has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1332 by virtue of the diversity of the parties, and because the amount in controversy exceeds $75,000.00. 25 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 3 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 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 of jurisdiction is reasonable. 3 16. Venue is proper in this District under 28 U.S.C. § 1391(b) and (c)(3) because Google 4 UK is, upon information and belief, an alien defendant and can be sued in any District, Google and 5 YouTube’s principal place of business is Mountain View, California, located within this judicial 6 district, and each of these Defendants are residents of the State of California. Venue is also proper in 7 this District under 28 U.S.C. § 1391(b) because a substantial part of the events giving rise to the 8 claims occurred in this District. 9 IV. INTRADISTRICT ASSIGNMENT 10 11 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). 12 13 V. GENERAL ALLEGATIONS The Development Of CamUp 14 18. In 2007, Be In co-founders Elio D’Anna, Joseph D’Anna and Elia D’Anna conceived 15 an online platform that would facilitate real-time, simultaneous social entertainment consumption: an 16 online space that would bring multiple friends together in an interactive, but also familiar, 17 environment centered around musical collaboration and media sharing—a platform they believed 18 could transform how people engage with one another and experience the Internet. 19 19. In the years that followed, Be In would invest countless hours and substantial 20 resources and ingenuity in bringing this innovative concept to life. Be In has invested over two 21 million dollars in developing and refining its co-founders’ vision of an online platform that would 22 combine music collaboration, shared entertainment consumption and social interaction in an intimate 23 online setting. 24 20. In 2009, Be In completed the development of the 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 28 and, in 2010, completed the development of the second and third beta versions, which, among other 4 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 features, allowed up to 10 people to simultaneously consume and create music, and other media, 2 without compromising the entertainment values or the intimacy of the 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 of the 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). 10 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 13 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 16 Interactive played a pivotal role in the success and launch of Twitter and FourSquare, for example. 17 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 of these elements to create a live, 21 familiar environment for shared entertainment consumption and social interaction. And its unique 22 combination of those elements made CamUp an unprecedented mode of consuming shared 23 entertainment and other media, such as educational content and documents, online, to which the 24 business and technology community reacted enthusiastically. 25 26. Through individual, expressive elements and its overall creative design, CamUp 26 fosters a sense of trust, 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 those set forth below. 5 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 27. Each CamUp user has his or her own “room,” which features a large, central frame for 2 viewing shared media (the “Social Player”), and smaller video frames, across the bottom of the page, 3 for everyone gathered in that room. Frames above and to the sides of the Social Player include a text 4 chat window, as well as a shared media playlist, which accommodates music, videos, photos, 5 documents, and other media, and can be added to and modified by anyone inside the room. 6 7 8 9 10 11 12 13 14 15 16 17 18 The Social Player is designed to be “center stage,” occupying dominant visual space in each online 19 “room”—a design choice that reflects the primacy of the shared entertainment experience to the 20 CamUp platform. These elements of CamUp stand in stark contrast to, for example, video chat 21 services that devote equal space to streaming media or static content and individual video streams. 22 28. At the same time, a number of elements of CamUp were specifically designed to 23 create a sense of intimacy, familiarity and trust built around a “real name” culture—qualities that 24 distinguish CamUp from many video chat services that are characterized by anonymity and/or 25 antisocial or promiscuous cultures. Examples of these elements include: 26 27 28 6 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 (a) The use of “room” as the central social framework for the service, and the 2 ability to name individual rooms— which are prominently displayed at the top 3 of each session—to reflect the personal style and culture of the participants; 4 (b) 5 The ability for users to invite friends to hang out in their room, mimicking the social experience of inviting a friend over to watch a movie or listen to music; 6 (c) A prominent “Invite Friend” button that links to existing social networks or 7 contacts and allows users to invite over a group of trusted friends, as opposed 8 to strangers; 9 (d) 10 CamUp’s “real name culture,” where users are encouraged to use real names and photos to create authentic identities on the site; 11 (e) The ability to “lock” individual rooms, to keep each social entertainment 12 experience private (rooms are private and invitation-only by default, but can be 13 made public); 14 (f) The “shaded” friend silhouette icon for the empty seats in a CamUp room, 15 which prompts users to expand the social media experience to include 16 additional friends. 17 29. In addition to the elements that create a sense of familiarity and trust, other elements 18 of CamUp enhance the communal (rather than individual) nature of the shared entertainment 19 experience, while enabling sufficient individual control to ensure that the group functions cohesively. 20 These features give each user the sense that the shared entertainment—and the conversation among 21 friends—is “around” him or her (i.e. that he or she is central to the entertainment experience and not 22 just a passive consumer of streaming media). For example: 23 (a) Icons in the group’s shared playlist show who contributed each piece of media; 24 (b) There are options for “shared” control over the playlist and the Social Player— 25 including stop and start capabilities—as well as a “leader mode,” which gives 26 only one user control. 27 (c) 28 A group text chat frame on the side of the Social Player creates more opportunities for dialogue and chatter within the group. 7 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 (d) An individual chat option allows for private text conversations in addition to 2 the group chat, and fosters one-on-one interaction amidst private groups, just 3 as would happen when a small group hangs around in the living room. 4 30. With CamUp, Be In authored an original combination of software and graphical 5 elements, including those described above, that express a customizable, shared entertainment setting, 6 a sense of familiarity and trust, and a unique balance between communal and individual user 7 experiences. 8 9 10 31. 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. Google’s First Exposure to CamUp; Critical Acclaim for CamUp Platform 11 32. When it debuted at SXSW, CamUp was introduced alongside GigIn, with Be In 12 representatives and beta testers giving live, real-time demonstrations of both platforms only meters 13 away from where Google had set up its booth, as reflected in the photograph below. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 33. During the conference, Google personnel visited the Be In booth, viewing the 2 demonstrations of both Gig In and CamUp, and discussing the platforms with Be In’s representatives. 3 At no point during SXSW did anyone from Google publicly announce or suggest privately to Be In 4 that Google was developing any platform or product similar in any respect to CamUp. And although 5 Google’s booth featured demonstrations of several Google products in development, there was no 6 hint of any product relating to social entertainment consumption. 7 34. Shortly after unveiling CamUp at SXSW, in or about early April, 2011, Be In 8 launched www.camup.com, making its social entertainment consumption platform publicly 9 accessible on the Internet. 10 35. Around the same time, Be In was named a finalist—and among “the most innovative” 11 and “pioneering” start-ups in digital entertainment”—by MIPTV Connected Creativity Ventures in its 12 competition for innovation in connected entertainment. MIPTV (Marché Internationale des 13 Programmes de Télévision) is an annual conference and networking forum that is one of the world’s 14 leading markets for buying, selling, producing and distributing entertainment content. MIPTV’s 15 Connected Creativity Ventures gathers media and entertainment executives, technology professionals 16 and innovative startups from around the world. 17 36. In connection with that competition Be In gave a presentation in Cannes, France, that 18 included a live demonstration of CamUp for a panel of industry experts. At least one senior Google 19 and YouTube executive was present at the competition. 20 37. On or about April 6, 2011, Be In won the “Early Stage” award from MIPTV 21 Connected Creativity Ventures for the most innovative start-up of the year. Be In was chosen from 22 over 150 candidates. 23 Be In’s Meeting With Google And Disclosure Of Its Confidential, Proprietary Business and 24 Marketing Strategies 25 38. Less than a month after CamUp was publicly unveiled at SXSW, and shortly after Be 26 In was named the most innovative start-up of the year by MIPTV Connected Creativity Ventures, 27 Bryan Foss, a consultant for Be In, attempted to set up a meeting between representatives from Be In 28 and representatives from Google and YouTube to discuss CamUp. On or about April 27, 2011 and 9 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 again on May 7, 2011, Mr. Foss reached out to Richard Robinson, a Director employed by Google 2 UK in London, suggesting that Be In’s social entertainment consumption platform would “work well 3 with Google and YouTube.” 4 39. By this time, Be In had devoted substantial time and resources to developing a 5 comprehensive confidential business strategy for maximizing CamUp’s adoption and integration with 6 first party content partners (like Google) and third-party developers through an open API. 7 40. In particular, with respect to YouTube and Google, Be In devised a strategy to 8 transform Google’s (and YouTube’s) massive—but unstructured, and largely anonymous—user base, 9 into an organized social community that would foster shared social experiences around Google’s 10 content products, including, most immediately, YouTube. At the time, despite millions of views 11 daily, YouTube viewers were nameless and faceless and, while they had the opportunity to post 12 comments to videos, they had no ability to interact with one another through an authenticated social 13 network or in a real-time communal setting. Be In recognized that YouTube and Google were 14 missing an opportunity to create a community, cohesiveness and social interaction around the media 15 content YouTube offered, and Be In devised a highly innovative strategy to integrate CamUp with 16 Google so as to seize that opportunity. 17 41. One aspect of this integration strategy was the creation of a social plug in between 18 YouTube and CamUp: a button on the bottom right of the YouTube media window inviting users to 19 “Watch with your friends on CamUp.” By clicking the button, users would be taken seamlessly into 20 CamUp’s trusted social environment, where users could then watch YouTube videos simultaneously 21 with their friends, while chatting about those videos face-to-face in real time. Once YouTube users 22 were fully integrated into the social network, the opportunities for monetization and analytic insights 23 would be endless. 24 42. As Be In disclosed to Google, this strategy gave Google precisely what it had been 25 attempting—unsuccessfully—to develop for years: a social network that would allow it to compete in 26 the arena of social media and to create a social layer around its myriad products. Google had tried, 27 and failed, multiple times to create its own viable social network. Previous attempts to build a 28 network from existing products—like Gmail—had been notorious flops. Be In’s social integration 10 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 strategy offered Google the promise of creating social engagement and interaction around YouTube’s 2 existing media content and Google’s (and YouTube’s) vast, existing user base. Be In did not disclose 3 its strategy to anyone outside the company prior to meeting with Google. 4 43. On or about May 8, 2011, Mr. Robinson agreed to meet with Joseph D’Anna, CEO 5 and co-founder of Be In, and Nik Miskov, Be In’s Vice President of Business Development. 6 Mr. Robinson advised that Bruce Daisey, then a Director at YouTube, would also attend the meeting. 7 Be In understood that these individuals would be attending the meeting as representatives of—and 8 acting on behalf of—Google and its subsidiary, YouTube. 9 44. In advance of the meeting, on or about May 9, 2011, Mr. Miskov emailed 10 Mr. Robinson indicating that while Be In was “more than happy to come and demo [CamUp] as it 11 publically exists and talk about what we have achieved so far,” Be In wanted to “dive deeper into our 12 business plan and strategy and to discuss how CamUp can drive tremendous value to giants like 13 YouTube and Google.” Mr. Miskov explained that Be In’s business plans and strategies were “all 14 trade secrets that could be harmful to communicate without any protection.” Accordingly, and, “in 15 order to gauge whether it is appropriate to get into that level of discussion” at their meeting, 16 Mr. Miskov asked Mr. Robinson if he would “agree to signing a Mutual Non-Disclosure Agreement 17 on behalf of Google.” Mr. Miskov attached a draft non-disclosure agreement to his e-mail. 18 45. Be In executives previously had resolved that, should Mr. Robinson refuse to sign a 19 non-disclosure agreement on behalf of Google, they would not discuss any confidential business plan 20 or strategy at their meeting, and, instead, only present their then-public platform. 21 46. On or about the next day, May 10, 2011, Celia Brown, Mr. Robinson’s assistant, sent 22 an electronic form non-disclosure agreement drafted by Google to Mr. Miskov via e-mail. Be In 23 electronically signed that non-disclosure agreement before the meeting with Google (hereinafter the 24 “NDA”). 25 47. Mr. D’Anna and Mr. Miskov met with Mr. Robinson at Google’s offices in London on 26 or about May 12, 2012. During the meeting, Mr. D’Anna and Mr. Miskov, as well as several Be In 27 employees who appeared through CamUp, provided Mr. Robinson a live, real-time demonstration of 28 the platform. 11 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 48. In addition to demonstrating CamUp, Mr. D’Anna and Mr. Miskov detailed Be In’s 2 proprietary social entertainment integration strategy. Be In’s representatives described, in detail, how 3 CamUp could create game-changing social cohesion and interaction among Google’s and YouTube’s 4 large existing user base. Mr. D’Anna disclosed to Mr. Robinson Be In’s plan to use a social plug in 5 on You Tube—a button that would invite YouTube users to “Watch With Your Friends”—so as to 6 drive YouTube users into a Google/CamUp social platform and away from competing platforms 7 where users could, at that time, share YouTube content, albeit in a non-dynamic environment. Be In 8 even disclosed where, precisely, such a button would appear on YouTube’s interface so as to set it 9 apart from competing platforms. 10 49. Be In also discussed with Mr. Robinson a detailed business strategy that would allow 11 Google to leverage the unique features of CamUp’s platform to create a compelling social framework 12 around the full range of Google’s products, such as Google Docs and Google’s Android mobile 13 platform. 14 50. Be In also revealed, in detail, a highly proprietary and ingenious analytics and 15 advertising strategy that offered Google the potential to use CamUp’s platform and social integration 16 strategy to access and aggregate deep social and behavioral insights about YouTube visitors and 17 others using Google products—information that would add incalculable value to Google’s core 18 advertising business. It also revealed a unique strategy for delivering branded or sponsored video 19 advertising to users through the CamUp social entertainment consumption platform, a strategy that 20 could not be effectively implemented by Google under its YouTube model at that time. 21 51. Another key component of the CamUp business plan disclosed to Mr. Robinson 22 involved opening up the CamUp platform to third party developers, who could offer a diverse array 23 of applications, or “apps,” and games, and vastly expand the platform’s functionality and reach— 24 making the social media consumption platform a hub of innovation and attracting users. 25 52. Be In detailed each of these elements of its strategic business plan during its meeting 26 with Mr. Robinson and, one day after their meeting, Mr. Miskov, on behalf of Be In, provided 27 Mr. Robinson, via e-mail, with an 8-page, single-spaced summary overview of some of the key 28 aspects of Be In’s strategic business plan marked as “Confidential.” 12 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 53. Be In disclosed its proprietary strategic business plan to Mr. Robinson on the mutual 2 understanding and express condition that, if Google utilized any aspect of that plan for its benefit, it 3 would be licensing CamUp from Be In for a one-time, lifetime per-user licensing fee, and that Be In 4 would further participate in advertising and sponsorship revenues generated through the CamUp 5 platform and Be In’s strategy. 6 54. Mr. Robinson was enthusiastic about CamUp and the strategic business plan devised 7 by Be In. He asked for additional information, asked to retain materials Be In created during the 8 meeting, and indicated that he would put Be In in touch with someone from YouTube. Mr. Robinson 9 made no mention of any existing projects or projects in the development stage at Google that were 10 similar in any way to CamUp. 11 55. Following the meeting, Mr. Miskov informed Mr. Foss in an email that Be In’s 12 meeting with Google went extremely well, and that the “next steps” included a meeting with 13 YouTube in the UK. In that e-mail, Mr. Miskov advised that he felt the “NDA was a good call,” and 14 he was happy Be In was “covered” in their conversations with Google. 15 56. Mr. Miskov reached out to Mr. Robinson, via email, on multiple occasions following 16 their meeting. Defendants, however, abruptly cut off all communication with Be In and failed to 17 respond to Plaintiff’s repeated emails. 18 57. Upon information and belief, Defendants and/or their employees, agents, and/or other 19 individuals acting on their behalf repeatedly accessed the CamUp website for the purpose of copying 20 the CamUp platform without permission, including the unique creative and expressive elements that 21 were the hallmark of CamUp. 22 58. This conduct was in direct violation of CamUp’s “Terms of Service,” which 23 Defendants agreed to when they used and/or visited the CamUp website. At all relevant times, 24 CamUp’s Terms of Service prohibited users and visitors from, inter alia, copying, reproducing, 25 exploiting or distributing the content of the CamUp website without consent, and from using the 26 website in “any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or 27 effect.” 28 // 13 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 59. Upon information and belief, following Plaintiff’s meeting with Google in May, 2011, 2 Defendants and/or their employees, agents, and/or other individuals acting on their behalf used and/or 3 visited the CamUp website for the purpose of, or with the result of, copying individual expressive 4 elements and the overall design of CamUp to create a competing social entertainment consumption 5 platform, Hangouts, and for the purpose of, or with the result of, furthering Defendants’ 6 misappropriation of Plaintiff’s confidential, proprietary information. 7 Google Launches Hangouts, A Blatant Copy of CamUp 8 9 60. Less than two months after Be In’s meeting with Google in London, on or about June 28, 2011, Google launched an invitation only field test for Google+, its most recent, and ambitious, 10 attempt to create a social network that could bring social functionality and context to its vast user 11 base—and compete with rival Facebook that had surpassed Google as the number one destination on 12 the Internet in 2010. On or about September 20, 2011, Google+ was made accessible to anyone 18 13 years of age or older. 14 61. Within Google+, Google launched Hangouts, a social entertainment consumption 15 platform virtually identical to CamUp, that encouraged users to “hangout” with up to nine friends in a 16 trusted video environment, simultaneously viewing media while, at the same time, chatting and 17 collaborating around a central, shared entertainment experience. The creative and expressive 18 elements of Hangouts at the time of launch were strikingly similar to CamUp: 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 14 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 62. The design of Hangouts 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 of the page, for everyone participating in the 21 “hangout”—directly analogous to the “rooms” of CamUp. Frames above and to the sides of the 22 central media frame included a text chat window, and, upon information and belief, as shown below, 23 in later versions of Hangouts, a playlist, which, like the shared playlist in CamUp, could be modified 24 and contributed to by all participants. 25 // 26 // 27 // 28 15 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 2 3 4 5 6 7 8 9 10 11 63. 12 13 14 15 documents and work on projects together, as in CamUp. The two platforms also shared a very similar invitation process whereby a user could invite his or her friends from within the platform’s community. Hangouts, like CamUp’s rooms, could be named individually. 64. 16 17 18 19 20 21 22 23 24 27 28 The frames for each of these features in Hangouts were in similar proportions to those in CamUp. The large, central frame for viewing shared media, for example, occupied dominant visual space, elevating the shared entertainment experience over one on one communication. The chat frame was smaller, more vertically rectangular, and to the side of the central frame, and the webcam frames were much smaller, and immediately adjacent to one another under the central frame. In both platforms, the company logos were positioned in the top left corner. The button icon designs were large and bulky. The “free seat” icon—the icon for an available seat in the session for another participant to join—was identical, a dark grey silhouette against a light gray background. Even the grey and white color scheme of CamUp was duplicated in Hangouts. 65. 25 26 Participants could watch videos together, and, in later versions, view images and Remarkably, Google claimed publicly that it took its engineers less than one day to create Hangouts—the feature of Google+ that industry critics credit with the success of the new social network. Indeed, despite Hangouts’ obvious and substantial creative similarity to CamUp, the technical execution suggested Hangouts was the product of a hurried process. For example, unlike 16 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 CamUp, in order to use Hangouts users were required to download and install a Hangouts plugin on 2 their computer. 3 66. Following its launch, Google touted Hangouts as far more than just a video-chat 4 service. Chee Chew, the Google engineer who oversaw the development of Hangouts stated in an 5 interview, “We use video-conferencing as an important element of it, but the whole serendipitous, run 6 across a hangout, jump in, people flowing in and out. To me that’s the essence of hangouts. The 7 video is just one important element of it but it’s a whole different construct.” 8 9 67. Media reports hail Hangouts as the “key component of Google+,” “Google’s sharpest edge over Facebook’s current product,” the new social network’s “killer feature.” A leading 10 technology industry media outlet said that “nailing an intimate experience that supports two or more 11 people in a video conference is no small feat, but Google knocked it out of the park with 12 Hangouts . . . . It’s more than just one-on-one chat though, which is why Hangouts are so magical.” 13 Google Integrates Hangouts Into YouTube Using Be In’s Proprietary Strategies 14 68. One month later, on or about August 18, 2011, Google integrated Hangouts (and, thus, 15 Google+) into YouTube, using the precise mechanism and strategy devised by Be In and disclosed to 16 Google during the May, 2011 meeting. When a YouTube user clicked the “Share” button under any 17 YouTube video, an icon appeared inviting the user to “Watch with your friends. Start a Google+ 18 Hangout”—the precise language and concept Be In disclosed confidentially to Google. Clicking the 19 20 21 22 23 24 25 26 27 28 17 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 button initiated an instant Hangouts media-sharing session. 2 69. Upon information and belief, Defendants subsequently modified the language of the 3 button, but when a user placed the mouse over the button, the “Watch With Your Friends” language 4 still appeared. Defendants later removed the “Watch With Your Friends” language from YouTube 5 entirely. 6 70. Critically—and as Be In had forecasted to Google—by misappropriating Be In’s 7 social entertainment integration strategy and integrating Hangouts into YouTube, Google for the first 8 time gained traction with a social network, by drawing the YouTube user base into Google+ and a 9 shared viewing experience. 10 71. Industry commentators noted the genius behind Google’s integration of Hangouts into 11 YouTube (the very strategy Be In had disclosed to Google), as a way to attract users to its social 12 platform. The day after the “Watch with your friends” button was added, one industry watcher 13 explained that “To provide a real alternative to Facebook, [Google] will need to get so-called regular 14 users hooked on the service as well. Hooking into YouTube and providing video chat functionality 15 that wasn’t previously available—and isn’t available on competitors like Facebook—is one way to do 16 so.” 17 72. Thereafter, Google continued to rollout the precise strategy Be In had shared with 18 Google in confidence, along with additional unique design elements created by Be In in CamUp. On 19 or about September 20, 2011, Google announced the launch of an On Air feature within Hangouts 20 allowing for public broadcasts that anyone can tune into, with the capability to record the broadcasts. 21 The same day, Google announced “Extras,” a feature that allows users to collaborate on documents in 22 Google Docs, share a sketchpad, share their screens with other users, and name their Hangouts. 23 Google also announced the release of a Hangouts Application Programming Interface (“API”) 24 allowing developers to create applications or “apps” to run on the Hangouts platform. Later versions 25 also allowed for virtual avatars, and designating a room as public or private. 26 27 73. 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. 28 18 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 74. Since the Hangouts launch, Google has pursued collaborations with a number of 2 education-oriented partners and has marketed Hangouts as a tool for students and educators, another 3 strategy disclosed by Be In to Google in confidence. Google has also facilitated the development of 4 commercial “channels” through a combination of YouTube and Hangouts functionality. 5 75. The features, strategies, and collaborations undertaken by Google since the launch of 6 Hangouts constitute the misappropriation and unauthorized use of Be In’s trade secrets disclosed 7 during its May, 2011 meeting with Google. 8 9 76. Following Google’s introduction of Hangouts, Be In saw a drop in what had been, up to that point, a modest, but steadily increasing, user base. While Be In has continued to conduct 10 meetings with potential investors and/or partners in connection with CamUp, interest in Be In’s social 11 entertainment consumption platform has waned since Google’s introduction of Hangouts, a blatant 12 (but inferior) copy of CamUp. In addition, entities that previously had expressed significant interest 13 in integrating CamUp into their platforms (to the point of developing product specifications) 14 suddenly terminated their dealings with Be In, citing partnerships with Google and Google’s 15 discomfort with Be In’s dispute with the company. Notably, in at least one case, a potentially 16 significant partner suggested that they had been informed by Google about this dispute, before this 17 lawsuit was filed. 18 77. Plaintiff initiated this action on June 28, 2012 to halt Defendants’ continued copying, 19 use, and misappropriation of its valuable trade secrets and intellectual property rights, which has 20 caused substantial and irreparable harm to Be In and its intellectual property. 21 FIRST CAUSE OF ACTION 22 Misappropriation of Trade Secrets (Cal. Civil Code § 3426, et seq.) 23 Against All Defendants 24 25 78. Plaintiff realleges, and incorporates by reference, each and every allegation set forth in paragraphs 1 through 78, inclusive. 26 79. Plaintiff’s confidential proprietary business and marketing strategies, including its 27 strategy for integrating CamUp’s social platform into YouTube, other Google products, and third- 28 party apps, to fuel social adoption and engagement on Google, constitute information that has 19 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 independent economic value because they are unknown to others, and are the subject of reasonable 2 efforts to maintain its secrecy and/or limit its use and, accordingly, are trade secrets within the 3 meaning of the California Uniform Trade Secrets Act, California Civil Code section 3426, et seq. 4 (“CUTSA”). 5 6 80. Defendants have acquired, disclosed, and/or used or intend to use Plaintiff’s trade secrets through improper means. 7 81. Defendants’ misappropriation of Plaintiffs’ trade secrets has damaged Plaintiff and/or 8 unjustly enriched Defendants in an amount not yet ascertained, but which will be determined 9 according to proof, including by depriving Plaintiff of participation in revenues and profits 10 Defendants have earned through such misappropriation and by depriving Plaintiff of revenues, 11 partnerships, customers and profits that it otherwise would have earned. See Cal. Civ. Code. § 12 3426.3. 13 82. Upon information and belief, Defendants’ misappropriation of Plaintiff’s trade secrets 14 was willful and malicious and, accordingly, Plaintiff is entitled to exemplary damages, and to recover 15 its reasonable attorney’s fees and costs. See Cal. Civ. Code §§ 3426.3, 3426.4. 16 83. Defendants’ actions have caused and will continue to cause irreparable injury to 17 Plaintiff unless enjoined by this court. Plaintiff has no adequate remedy at law. Accordingly, 18 Plaintiff is also entitled to injunctive relief pursuant to California Civil Code sections 3426.2. 19 SECOND CAUSE OF ACTION 20 Copyright Infringement (Copyright Act, 17 U.S.C. §§ 101 et seq.) 21 Against Google, Inc. and YouTube 22 23 84. Plaintiff realleges, and incorporates by reference, each and every allegation set forth in paragraphs 1 through78, inclusive. 24 85. Plaintiff is the owner of all right, title and interest in the original media platform 25 CamUp. Be In has obtained a copyright registration from the United States Copyright Office for 26 registration of its copyright in the CamUp work and platform. Reg. No. TX-7-567-462. A true and 27 correct copy of the certificate of registration is attached hereto as Exhibit A. 28 20 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 86. Google and YouTube had access to Plaintiff’s copyrighted work, through mutual 2 participation and communications with Plaintiff at various technology conferences and as a result of 3 Plaintiff’s meeting with Google in May, 2011. In addition, upon information and belief, Defendants 4 accessed Plaintiff’s work by using and/or visiting www.camup.com. 5 87. Upon information and belief, Google and YouTube have infringed and continue to 6 infringe Plaintiff’s copyrights in its social entertainment consumption media sharing platform, 7 CamUp, including its individual expressive elements and its overall design, and/or have committed 8 and continue to commit acts of contributory and/or induced infringement, by (i) reproducing 9 Plaintiffs’ copyrighted work; (ii) publishing the work on the Internet under the name Google 10 Hangouts, (iii) offering the work to millions of users to use through YouTube and Google’s social 11 network, Google+; and (iv) creating unauthorized derivative works through the Hangouts product. 12 13 88. As a result of the foregoing activities, Google and YouTube are liable to Plaintiff for copyright infringement, contributory infringement, and/or induced infringement. 14 89. By reason of Google and YouTube’s actions, Plaintiff has suffered, and will continue 15 to suffer, substantial damage to its business, as well as losses in an amount not yet ascertained, but 16 which will be determined according to proof. In addition to Plaintiff’s actual damages, Plaintiff is 17 entitled to receive the profits made by Google and YouTube from their wrongful acts, pursuant to 17 18 U.S.C. § 504. 19 90. Google and YouTube’s conduct has caused and will continue to cause irreparable 20 injury to Plaintiff unless enjoined by this court. Plaintiff has no adequate remedy at law. 21 Accordingly, Plaintiff is entitled to injunctive relief pursuant to 17 U.S.C. § 502. 22 THIRD CAUSE OF ACTION 23 Breach of Implied in Fact Contract 24 Against All Defendants 25 26 91. Plaintiff realleges, and incorporates by reference, each and every allegation set forth in paragraphs 1 through78, inclusive. 27 28 21 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 92. Plaintiff has devoted extensive time, resources and ingenuity in developing CamUp, a 2 unique social entertainment consumption platform, as well as strategies for integrating CamUp with 3 third party content partners. 4 93. Plaintiff disclosed its valuable, proprietary business and marketing strategies to 5 Defendants, including its social media integration strategy, in confidence, on the condition that they 6 would utilize those confidential strategies only if, and when, they licensed the CamUp platform from 7 Be In, thereby compensating Be In for the value of those proprietary business strategies. 8 9 10 94. Defendants voluntarily accepted the disclosure of Plaintiff’s proprietary business strategies, knew, or should have known, the conditions on which those confidential business strategies were disclosed, and knew the reasonable value of those confidential business strategies. 11 95. In breach of that mutual understanding, Defendants have actually used, and upon 12 information and belief intend to continue to use, confidential and proprietary business and marketing 13 strategies developed by Be In in connection with its social entertainment platform, CamUp, for the 14 benefit of Defendants. Defendants have not licensed CamUp. 15 96. By reason of Defendants’ actions, Plaintiff has sustained and will continue to sustain 16 substantial injury, loss, and damage in an amount not yet ascertained, but which will be determined 17 according to proof. 18 FOURTH CAUSE OF ACTION 19 Breach of Contract 20 Against All Defendants 21 22 97. Plaintiff realleges, and incorporates by reference, each and every allegation set forth in paragraphs 1 through78, inclusive. 23 98. The home page of www.camup.com includes a link to CamUp’s “Terms of Service.” 24 At all relevant times, the Terms of Service posted on CamUp’s website stated, under the heading 25 “Your Acceptance,” the following: “By using and/or visiting this Website (collectively, including all 26 content and functionality available through the CamUp.com domain name, the “CamUp Website”, or 27 “Website”), you signify your agreement to these Terms of Use, [and] CamUp’s Privacy Policy. . .” 28 22 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 and “If you do not agree to any of these Terms of Use, or the CamUp Privacy Policy, you must 2 discontinue use of the CamUp Website immediately.” 3 4 99. At all relevant times, the Terms of Service restricted and conditioned use of CamUp as follows: 5 The content on the CamUp Website, except all User Submissions (as defined below), including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (“Content”) and the trademarks, service marks and 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 IS for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. CamUp reserves all rights not expressly granted in and to the Website and the Content. 6 7 8 9 10 11 100. 12 At all relevant times, the Terms of Service also provided, inter alia, that by using 13 and/or visiting the CamUp Website, “[y]ou agree”: “not to distribute in any medium any part of the 14 CamUp Website without CamUp’s prior written authorization”; “to not engage in the use, copying, or 15 distribution of any of the Content other than expressly permitted herein, including any use, copying, 16 or distribution of User Submissions of third parties obtained through the Website for any commercial 17 purpose” and that “[y]ou may not use” the Website in “any way that is unlawful or fraudulent, or has 18 any unlawful or fraudulent purpose or effect.” 101. 19 Upon information and belief, following Plaintiff’s meeting with Google in May, 2011, 20 Defendants and/or their employees, agents, and/or other individuals acting on their behalf used and/or 21 visited the CamUp website for the purpose of, or with the result of, copying, downloading, 22 reproducing, distributing or exploiting portions of the CamUp Website and Content (as defined in the 23 Terms of Service) for commercial purposes and without authorization from CamUp, to develop and 24 launch Hangouts. 102. 25 26 Defendants’ conduct was for commercial purposes and was not authorized, and it therefore breached CamUp’s Terms of Service. 27 28 23 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 103. By reason of Defendants’ actions, Plaintiff has sustained and will continue to sustain 2 substantial injury, loss, and damage in an amount not yet ascertained, but which will be determined 3 according to proof. 4 PRAYER FOR RELIEF 5 WHEREFORE, Plaintiff respectfully requests that this Court grant judgment against 6 Defendants on the counts detailed above and issue the following relief: 7 1. Preliminary injunction prohibiting Defendants and any other persons or entities acting in 8 concert with Defendants from disclosing, exploiting or utilizing Plaintiff’s confidential, strategic 9 business and marketing plans disclosed to Google in May, 2011, including, but not limited to, 10 Plaintiff’s social integration product and marketing strategy; 11 2. Permanent injunction prohibiting Defendants and any other persons or entities acting in 12 concert with Defendants from disclosing, exploiting or utilizing Plaintiff’s confidential, strategic 13 business and marketing plans disclosed to Google in May, 2011, including, but not limited to, 14 Plaintiff’s social integration product and marketing strategy; 15 3. Preliminary injunction prohibiting Defendants and any other persons or entities acting in 16 concert with Defendants from engaging in future acts of infringement, contributory infringement 17 and/or induced infringement of Plaintiff’s copyrights in it is CamUp platform, including by 18 prohibiting Google from offering or utilizing its Hangouts platform; 19 4. Permanent injunction prohibiting Defendants and any other persons or entities acting in 20 concert with Defendants from engaging in future acts of infringement, contributory infringement 21 and/or induced infringement of Plaintiff’s copyrights in it is CamUp platform, including by 22 prohibiting Google from offering or utilizing its Hangouts platform; 23 5. An accounting of any and all profits of Defendants attributable to its wrongful acts; 24 6. Monetary damages adequate to compensate Plaintiff for Defendants’ acts of trade secret 25 misappropriation, copyright infringement, breach of implied contract, breach of contract, breach of 26 confidence and unfair competition, including actual and exemplary damages and lost profits, in an 27 amount greater than $75,000.00, or in the alternative for copyright infringement, statutory damages 28 under 17 U.S.C. § 504(c); 24 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 7. Plaintiff’s attorney’s fees; 2 8. Plaintiff’s costs of suit herein incurred; 3 9. Pre-judgment and post-judgment interest; and 4 10. Such other and further relief, including all available monetary and equitable relief, as the 5 case may require and this Court deems just and proper. 6 DEMAND FOR JURY TRIAL 7 8 Plaintiff Be In, Inc. hereby demands a trial by jury of all issues so triable pursuant to Rule 38 of the Federal Rules of Civil Procedure. 9 10 Dated: June 10, 2013 11 Respectfully submitted, MORRISON & FOERSTER LLP 12 By: ______/s/______________________ Charles S. Barquist 13 14 Attorneys for Plaintiff BE IN, INC. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 SECOND AMENDED COMPLAINT Case No. 5:12-CV-03373-LHK la-1211734 1 CERTIFICATE OF SERVICE 2 3 4 5 6 7 I, certify that on June 10, 2013 a copy of the attached document will be served on counsel by electronic means by CM/ECF and by hand delivery on the following. COLLEEN BAL CHARLES TAIT GRAVES WILSON SONSINI GOODRICH & ROSATI One Market Plaza, Spear Tower, Suite 3300 San Francisco, California 94105-1126 8 9 Dated: June 10, 2013 /s/ Rosa L. Beltran Rosa L. Beltran 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 la-1213232 Proof of Service

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