Righthaven LLC v. Newman
Filing
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AMENDED COMPLAINT As a Matter of Right Pursuant to FRCP 15(a)(1) with Jury Demand against Garry Newman, filed by Righthaven LLC. Adds new parties. Proof of service due by 11/13/2011. (Attachments: # 1 Exhibit Exhibits1A-2A) (Mangano, Shawn)
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SHAWN A. MANGANO, ESQ.
Nevada Bar No. 6730
shawn@manganolaw.com
SHAWN A. MANGANO, LTD.
9960 West Cheyenne Avenue, Suite 170
Las Vegas, Nevada 89129-7701
Tel.: (702) 304-0432
Fax: (702) 922-3851
Attorneys for Plaintiff Righthaven LLC
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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RIGHTHAVEN LLC, a Nevada limitedliability company,
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Case No.: 2:10-cv-01762-JCM-PAL
PLAINTIFF RIGHTHAVEN LLC’S
FIRST AMENDED COMPLAINT AS A
MATTER OF RIGHT PURSUANT TO
FEDERAL RULE OF CIVIL
PROCEDURE 15(a)(1) AND DEMAND
FOR JURY TRIAL
Plaintiff,
v.
GARRY NEWMAN, an individual; and
FACEPUNCH STUDIOS LTD., a limited
company formed under the laws of Great
Britain,
Defendants.
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Righthaven LLC (“Righthaven”) complains as follows through this First Amended
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Complaint as a Matter of Right Pursuant to Federal Rule of Civil Procedure 15(a)(1) (the
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“Amended Complaint”) against Garry Newman (“Newman”) and Facepunch Studios Ltd. (the
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“Company” and collectively referenced herein with Newman as “Defendants”) on information
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and belief:
NATURE OF ACTION
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1.
This is an action for copyright infringement pursuant to 17 U.S.C. § 501.
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PARTIES
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liability company with its principal place of business in Nevada.
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4.
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Newman is a citizen and resident of Great Britain, as set forth in his sworn
declaration submitted in this action. (Doc. # 20 at 1.)
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Righthaven is, and has been at all times relevant to this lawsuit, in good standing
with the Nevada Secretary of State.
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Righthaven is, and has been at all times relevant to this lawsuit, a Nevada limited-
The Company is alleged to be a limited company organization under the laws of
Great Britain. (Doc. # 20 at 2.) The Company is asserted to have no employees beyond its two
directors. (Id.)
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Newman has admitted his sworn declaration submitted in this action that he has
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an ownership interest in the Company and that he is one of two directors of the Company. (Doc.
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# 20 at 2.)
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Newman has admitted in a sworn declaration filed in this action that he is the
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domain registrar for the Internet domain found at (the “Domain” and together
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with the content displayed thereon the “Website”). (Doc. # 20 at 2:1.)
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As of the time Righthaven filed the original Complaint (Doc. # 1) Newman was
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identified by the registrar, Tucows, Inc. (“Tucows”), as the registrant and administrative contact
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for the Domain. Attached hereto as Exhibit 1A is a true and correct copy of the WHOIS domain
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search results for the Domain, which was performed on July 15, 2011. Currently, Newman is
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identified as the administrative and technical contact for the Website. (Exhibit 1A at 3.)1
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Sometime after the filing of Righthaven’s original Complaint, Newman’s name
was removed as the Website registrant and replaced by the Company as registrant. (Id.)
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Righthaven incorporates by reference the Exhibits attached to its original Complaint, e.g.,
Doc. # 1-1, Ex. 1. Any Exhibits not previously submitted are identified herein with an associated
alphabetical designation of “A”. For example, newly submitted material cited above is
referenced as “Exhibit 1A”.
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Newman is believed to exhibit substantial control over the Website and the
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content posted thereon as exhibited by the “Rules” section for the Website. Attached hereto as
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Exhibit 2A is a true and correct copy of a printout of the Website Rules from July 15, 2011 as
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located at http://www.facepunch.com/fp_rules.php. Specifically, the Website “Rules” state the
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following in reference to a “Garry”, which Righthaven alleges on information and belief to be
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Defendant, “Garry doesn’t need to provide a legitimate reason to ban anyone. These are his
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forums. If you’re a dick to him he will ban you no matter how right or wrong you are.” (Ex. 2A,
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emphasis added.)
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Advertising directed toward those who view the Website can be clearly seen on
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even the “Rules” portion attached to this Amended Complaint. (Ex. 2A.) The Website also
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contains user name, password and registration login information. (Id.) On information and
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belief, Righthaven alleges that revenue is generated by the Website through the advertising
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appearing thereon and potentially through memberships and/or account upgrades offered to
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members of the public.
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Defendants, individually and/or collectively, are believed to economically benefit
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from viewer traffic on the Website and through related Website activities. For instance, on
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information and belief, increased viewer traffic would likely result in advertisers paying more
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money for the right to have their company’s ads displayed. Likewise, Defendants, individually
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and/or collectively, also potentially economically benefit from Website visitors clicking on
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displayed ads on what is referred to as a “pay-per-click” revenue model.
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receive such a benefit, based on his ownership interest in the Company. (Doc. # 20 at 2.)
JURISDICTION AND VENUE
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Newman unquestionably receives an economic benefit, or the opportunity to
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This Court has original subject matter jurisdiction over this copyright
infringement action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1338(a).
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The United States District Court for the District of Nevada is an appropriate
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venue, pursuant to 28 U.S.C. §1391(b)(2), because a substantial part of the events or omissions
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giving rise to the claim occurred in Nevada.
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As alleged herein, Righthaven is the owner of the copyright in the literary work
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entitled “ ‘Death ray’ scorched hair” (the “Work”), which was originally published by the Las
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Vegas Review-Journal. (Doc. # 1-1, Ex. 1.)
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At all times relevant to this lawsuit, the Work has depicted and depicts the
original source publication as the Las Vegas Review-Journal.
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The subject matter of the Work, at least in part, directly relates to an architectural
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phenomena occurring at a prominent hotel located in Las Vegas, Nevada. (Doc. # 1-1, Ex. 1.)
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No other geographic location is associated with the Work. (Id.)
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The Work is of specific interest to Nevada residents because it relates to an
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architectural phenomena occurring at a prominent hotel located in Las Vegas, Nevada. (Doc. # 1-
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1, Ex. 1.)
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20.
On or about September 25, 2010, Defendants displayed the Work on the Website
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without authorization; alternatively, Defendants permitted the unauthorized copy of the Work to
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be displayed on the Website with knowledge that such display was impermissible despite
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Newman’s role as a content monitor for the Website and despite other means of preventing this
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unauthorized display (the “Infringement”). (Doc. # 1-1, Ex. 2.)
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21.
Defendants willfully copied, on an unauthorized basis, the Work from a source
emanating from Las Vegas, Nevada.
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Defendants’ knew the original source publication was the Las Vegas Review-
Journal by directly causing, participating in, or contributing participating in the Infringement.
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Defendants’ knew the subject matter of the Work, at least in part, directly related
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to an architectural phenomena occurring at a prominent hotel located in Las Vegas, Nevada by
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directly causing, participating in, or contributing participating in the Infringement.
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Defendants’ knew the Work was of specific interest to Nevada residents by
directly causing, participating in, or contributing to the Infringement.
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Defendants’ display of the Infringement was and, at least as of the filing of the
original Complaint, purposefully directed toward the State of Nevada and its residents.
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Defendants knew, or reasonably should have known, that websites, such as the
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Website, are and were subject to habitual postings by members, users, enhanced users and/or
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website visitors of unauthorized copyright protected content.
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Defendants failed to institute any proactive policy of precluding, or attempting to
preclude, others from posting unauthorized copyright protected content on the Website.
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Defendants failed to institute any proactive policy of deleting, or attempting to
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delete or otherwise remove, the display of unauthorized copyright protected content on the
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Website.
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29.
Defendants’ alleged conduct and/or failure to act concerning the unauthorized
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posting of copyright protected content on the Website constituted and constitutes willful
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blindness of such infringing conduct, which includes the Infringement.
FACTS
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102(a)(1).
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31.
The Work constitutes copyrightable subject matter, pursuant to 17 U.S.C. §
On January 18, 2010, Stephens Media LLC (“Stephens Media), owner of the Las
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Vegas Review-Journal, and Righthaven entered into a Strategic Alliance Agreement (the
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“SAA”), which generally governed the relationship between the two parties with regard to the
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assignment and licensure of copyright protectable content.
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On May 9, 2011, Stephens Media and Righthaven executed the Clarification and
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Amendment to Strategic License Agreement (the “Clarification”) in order to clarify the parties’
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intentions regarding copyright assignments to Righthaven, and to eliminate Stephens Media’s
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right of reversion and convert Stephens Media’s right to use an assigned copyright to a mere
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non-exclusive license. The Clarification is retroactive to the effective date of the SAA. At least
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since the execution of the Clarification, Righthaven has been the sole, current owner of the
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copyright in and to the Work and has standing to sue Defendants for infringement of the Work.
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On July 7, 2011, Stephens Media and Righthaven entered into an Amended and
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Restated Strategic Alliance Agreement (the “Restated Amendment”) to further clarify the
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parties’ intentions regarding copyright assignments to Righthaven, and to, among other things,
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grant Stephens non-exclusive license to exploit the Work, with a possibility that such non-
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exclusive license would terminate after five (5) years upon the voluntary election of an optional
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reversion. The Restated Amendment is retroactive to the effective date of the SAA. The
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Restated Amendment has sought to clarify, correct, amend and/or address issues identified in
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judicial decisions from this District, which certain Righthaven copyright infringement actions
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without prejudice for lack of standing.
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22.
The Work was originally published prior to the Infringement.
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24.
At no time did Defendants seek permission, in any manner, to reproduce, display
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or otherwise exploit the Work.
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At no time were Defendants granted, expressly or impliedly, permission to
reproduce, display or otherwise exploit the Work.
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After the Infringement, Stephens Media assigned all rights, title and interest in
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and to the Work to Righthaven (the “Assignment”). In addition to conveying full ownership
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rights in and to the Work, Stephens Media also expressly conveyed to Righthaven in the right to
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seek redress for all past, present and future infringements of the Work through the Assignment.
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The alleged Infringement occurred prior to the Assignment. As such, the
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infringing conduct alleged herein constitutes an accrued or past claim for relief that was assigned
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by Stephens Media to Righthaven, along with all rights of ownership, through the Assignment
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despite the license-back of certain rights to Stephens Media under the SAA, the Clarification or
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the Restated Amendment.
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In view of the Assignment, the SAA, the Clarification, and the Restated
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Amendment, Righthaven unquestionably owns the Work and has been properly conveyed the
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right to sue for past, present and future infringements of the Work, which includes Defendants’
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infringing conduct alleged herein.
31. On October 6, 2010, the United States Copyright Office received Righthaven’s
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official submittal for registration of the Work, including the application, the deposit copy and the
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registration fee as alleged in the original Complaint and Exhibit 3 attached thereto. (Doc. # 1 at
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4; Doc. # 1-1, Ex. 4.)
FIRST CLAIM FOR RELIEF: DIRECT COPYRIGHT INFRINGEMENT
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32.
Righthaven repeats and realleges the allegations set forth in Paragraphs 1 through
31 above.
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Righthaven holds the exclusive right to reproduce the Work, pursuant to 17
U.S.C. § 106(1).
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Righthaven holds the exclusive right to prepare derivative works based upon the
Work, pursuant to 17 U.S.C. § 106(2).
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Righthaven holds the exclusive right to distribute copies of the Work, pursuant to
17 U.S.C. § 106(3).
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Righthaven holds the exclusive right to publicly display the Work, pursuant to 17
U.S.C. § 106(5).
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Defendants reproduced the Work in derogation of Righthaven’s exclusive rights
under 17 U.S.C. § 106(1).
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Defendants created an unauthorized derivative of the Work in derogation of
Righthaven’s exclusive rights under 17 U.S.C. § 106(2).
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Defendants distributed, and for some unknown time period continued to
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distribute, an unauthorized reproduction of the Work on the Website, in derogation of
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Righthaven’s exclusive rights under 17 U.S.C. § 106(3).
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40.
Defendants publicly displayed, and for some unknown period of time continued to
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publicly display, an unauthorized reproduction of the Work on the Website, in derogation of
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Righthaven’s exclusive rights under 17 U.S.C. § 106(5).
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41.
Defendants have willfully engaged in the copyright infringement of the Work.
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42.
Defendants’ acts as alleged herein, and the ongoing direct results of those acts,
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have caused and will continue to cause irreparable harm to Righthaven in an amount Righthaven
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cannot ascertain, leaving Righthaven with no adequate remedy at law.
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43.
Unless Defendants and those acting in concert with them are preliminarily and
permanently enjoined from further infringement of the Work, Righthaven will be irreparably
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harmed, and Righthaven is thus entitled to preliminary and permanent injunctive relief against
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further infringement pursuant to 17 U.S.C. § 502.
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SECOND CLAIM FOR RELIEF: VICARIOUS COPYRIGHT INFRINGEMENT
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Righthaven repeats and realleges the allegations set forth in Paragraphs 1 through
43 above.
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Defendants have directly profited and continued to directly profit, at least as of
the filing of the original Complaint, from their Infringement.
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The Defendants had as of the as of filing of the original Complaint, the right and
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ability to stop or limit infringement of copyright protected works displayed on the Website, but
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have declined to meaningfully exercise that right as evidenced by the Infringement.
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47.
Righthaven has been damaged as a result of Defendants’ acts as alleged herein,
and Defendants are liable to Righthaven for such damages pursuant to 17 U.S.C. § 504(a)(2).
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Defendants’ acts as alleged herein, and the ongoing direct results of those acts,
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have caused and will continue to cause irreparable harm to Righthaven in an amount Righthaven
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cannot ascertain, leaving Righthaven with no adequate remedy at law.
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49.
Unless Defendants and those acting in concert with them are preliminarily and
permanently enjoined from further infringement of the Cardinal Work, Righthaven will be
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irreparably harmed, and Righthaven is thus entitled to preliminary and permanent injunctive
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relief against further infringement of the Cardinal Work, pursuant to 17 U.S.C. § 502.
PRAYER FOR RELIEF
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Righthaven requests that this Court grant Righthaven’s claims for relief herein as follows:
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1.
Preliminarily and permanently enjoin and restrain Defendants, and Defendants’
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officers, agents, servants, employees, attorneys, parents, subsidiaries, related companies,
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partners, and all persons acting for, by, with, through, or under the Defendants, from directly or
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indirectly infringing the Work by reproducing the Work, preparing derivative works based on the
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Work, distributing the Work to the public, and/or displaying the Work, or ordering, directing,
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participating in, or assisting in any such activity;
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2.
Direct Defendants to preserve, retain, and deliver to Righthaven in hard copies or
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electronic copies:
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All evidence and documentation relating in any way to Defendants’ use of
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the Work, in any form, including, without limitation, all such evidence and
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documentation relating to the Website;
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All evidence and documentation relating to the names and addresses
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(whether electronic mail addresses or otherwise) of any person with whom the
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Defendants have communicated regarding his use of the Work; and
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of the Work;
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3.
All financial evidence and documentation relating to the Defendants’ use
Order the surrender to Righthaven of all hardware, software, electronic media and
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domains, including the Domain, used to store, disseminate and display the unauthorized versions
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of any and all copyrighted Works as provided for under 17 U.S.C. § 505(b) and/or as authorized
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by Federal Rule of Civil Procedure 64;
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4.
Award Righthaven statutory damages for the willful infringement of the Work,
pursuant to 17 U.S.C. § 504(c);
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Award Righthaven costs, disbursements, and attorneys’ fees incurred by
Righthaven in bringing this action, pursuant to 17 U.S.C. § 505;
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Award Righthaven pre- and post-judgment interest in accordance with applicable
law; and
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Grant Righthaven such other relief as this Court deems appropriate.
DEMAND FOR JURY TRIAL
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Righthaven requests a trial by jury pursuant to Fed. R. Civ. P. 38.
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Dated this 15th day of July, 2011.
SHAWN A. MANGANO, LTD.
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By: /s/ Shawn A. Mangano, Esq.
SHAWN A. MANGANO, ESQ.
Nevada Bar No. 6730
shawn@manganolaw.com
9960 West Cheyenne Avenue, Suite 170
Las Vegas, Nevada 89129-7701
Tel.: (702) 304-0432
Fax: (702) 922-3851
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Attorney for Plaintiff Righthaven LLC
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CERTIFICATE OF SERVICE
Pursuant to Federal Rule of Civil Procedure 5(b), I hereby certify that I am an employee
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of Righthaven LLC and that on this 15th day of July, 2011, I caused PLAINTIFF
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RIGHTHAVEN LLC’S FIRST AMENDED COMPLAINT AS A MATTER OF RIGHT
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PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 15(a)(1) AND DEMAND
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FOR JURY TRIAL to be served by the Court’s CM/ECF system.
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By:
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/s/ Shawn A. Mangano
Shawn A. Mangano, Esq.
SHAWN A. MANGANO, LTD.
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