Facebook, Inc. v. Power Ventures, Inc.

Filing 56

MOTION for Judgment on the Pleadings or, in the Alternative MOTION Partial Summary Judgment of Liability Under California Penal Code Section 502(c) filed by Facebook, Inc.(a Delaware corporation). Motion Hearing set for 2/26/2010 09:00 AM in Courtroom 3, 5th Floor, San Jose. (Attachments: # 1 Proposed Order)(Pers, Jessica) (Filed on 12/23/2009) Modified on 3/2/2010,(counsel failed to properly select multiple motions.) (cv, COURT STAFF). Modified on 3/12/2010 (cv, COURT STAFF).

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I. NEEL CHATTERJEE (STATE BAR NO. 173985) [e-mail] THOMAS J. GRAY (STATE BAR NO. 191411) [e-mail] m JULIO C. AVALOS (STATE BAR NO. 255350) javalo [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: [phone] Facsimile: [phone] JESSICA S. PERS (STATE BAR NO. 77740) [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP The Orrick Building 405 Howard Street San Francisco, CA 94105-2669 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff and FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

FACEBOOK, INC., Plaint iff, v. POWER VENTURES, INC. a Cayman Island Corporation; STEVE VACHANI, an individual; DOE 1, d/b/a POWER.COM, DOES 2-25, inclusive, Defendants.

Case No. 5:08-cv-05780 JF (RS) [PROPOSED] ORDER GRANTING FACEBOOK INC.'S MOTION FOR JUDGMENT ON THE PLEADINGS, OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT OF LIABILITY UNDER CALIFORNIA PENAL CODE § 502(C) Date: Time: Judge: Courtroom: February 26, 2009 9:00 am Hon. Jeremy D. Fogel 3

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[PROP] ORDER GRANTING FACEBOOK'S MOTION FOR JUDGMENT ON THE PLEADINGS, OR, IN THE ALTERNATIVE, MOTION FOR SJ. CASE NO. 5:08-C V-05780 JF

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The Motion of Facebook, Inc. ("Facebook") for Judgment On The Pleadings Pursuant To Federal Rule of Civil Procedure 12(c) or, in the alternative, for Summary Judgment Pursuant to Federal Rule of Civil Procedure 56 against Defendants Power Ventures, Inc. and Steven Vachani ("Power") came on for hearing on February 26, 2009, before the Honorable Jeremy D. Fogel; The Court, having considered the papers filed in support of and in opposition to the motions, the arguments presented at the hearing and other matters relevant to the determination of these motions Hereby finds and Orders as follows: 1. 2. This Court has jurisdiction over the subject matter and the parties. In its Amended Answer, Power has admitted facts sufficient to establish a violation of California Penal Code 502(c). 3. Facebook has alleged, and Power has admitted that: a. b. Facebook owns and operates the widely popular social networking website located at http:www.facebook.com. Before Facebook activates a username and permits a user access to certain features of the Facebook website, the user must agree to Facebook's Terms of Use, which set forth the acceptable terms of use of its computer network and prohibit users from conducting certain activities. Specifically, Facebook's Terms of Use require Facebook users to abide by certain rules of user conduct. In exchange for the free Facebook service, users agree that they will refrain from, among other things, soliciting personal information from anyone under 18 or soliciting passwords or personally identifying information for commercial or unlawful purposes; using or attempting to use another's account, service or system without authorization from Facebook, or creating a false identity on Facebook, using automated scripts to collect information from or otherwise interact with the Facebook website, impersonating any person or entity, or falsely stating or otherwise misrepresenting oneself, uploading, posting, transmitting sharing or otherwise making available any unsolicited or unauthorized advertising, solicitations, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation, harvesting or collecting email addresses or other contact information from other users from Facebook, registering for more than one User account or falsely stating or otherwise misrepresenting oneself, and using -4[PROP] ORDER GRANTING FACEBOOK'S MOTION FOR JUDGMENT ON THE PLEADINGS, OR, IN THE ALTERNATIVE, MOTION FOR SJ. CASE NO. 5:08-C V-05780 JF

c. d.

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Facebook's website for commercial use without the express permission of Facebook. 4. 5. Power permits users to enter their account information to access the Facebook site through Power.com. Power has developed computer software and other automated devices and programs to access and obtain information from the Facebook website for aggregating services. Power has copied and stored all the Facebook data files necessary to display the Facebook website through the Power browser. Power has at no time received permission from Facebook to represent that solicitation of Facebook usernames and passwords was authorized or endorsed by Facebook. Power's accessing and subsequent "scraping" of Facebook data from Facebook's servers constitutes knowing and impermissible or unauthorized accessing of Facebook's servers. Power's accessing and copying of Facebook data constitutes a "use" of that data pursuant to California Penal Code 502(c). Facebook's Terms of Use are enforceable as to registered users of the Facebook website. Use of Facebook's website in contravention of the Facebook Terms of Use constitutes "impermissible" or unauthorized access and/or use of the Facebook site within the meaning of California Penal Code 502(c). Facebook is entitled to a permanent injunction pursuant to California Penal Code Section 502(e)(1). Facebook has expended resources combating Power's actions, as demonstrated by its implementation of technological blocking measures that Power has admitted to circumventing. ACCORDINGLY, Facebook's Motion for Judgment On The Pleadings is hereby GRANTED.

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IT IS THEREFORE ORDERED THAT: 15. Defendants Power Ventures, Inc. and Steven Vachani, and all of their agents, successors, and assigns, and all other persons in active concert or participation with any of them, are hereby PERMANENTLY RESTRAINED and ENJOINED from: a. b. c. solicit ing and/or storing Facebook login information; accessing or attempting to access Facebook's website and computer systems; displaying Facebook's trademark anywhere on their websites; -5[PROP] ORDER GRANTING FACEBOOK'S MOTION FOR JUDGMENT ON THE PLEADINGS, OR, IN THE ALTERNATIVE, MOTION FOR SJ. CASE NO. 5:08-C V-05780 JF

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d. e.

engaging in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of Facebook's website; and engaging in any activity that violates Facebook's Terms of Use.

IT IS SO ORDERED. Dated: Honorable Jeremy Fogel United States District Judge

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[PROP] ORDER GRANTING FACEBOOK'S MOTION FOR JUDGMENT ON THE PLEADINGS, OR, IN THE ALTERNATIVE, MOTION FOR SJ. CASE NO. 5:08-C V-05780 JF