K-Beech, Inc. v. John Does 1-37

Filing 18

AMENDED COMPLAINT against John Does 1-37, filed by K-Beech, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Abramson, Frederic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------------X
:
K-BEECH, INC.,
:
:
Plaintiff,
:
:
vs.
:
:
JOHN DOES 1-37,
:
:
Defendants.
:
:
-----------------------------------------------------------------X

Civil Action No. 11-CV-03995
AMENDED COMPLAINT

Plaintiff, K-Beech, Inc., sues John Does 1-37, and alleges:
Introduction
1.

This matter arises under the United States Copyright Act of 1976, as amended, 17

U.S.C. §§ 101 et seq. (the “Copyright Act”), and the Lanham Act, as amended, 15 U.S.C. §§
1051 et seq.
2.

Through this suit, Plaintiff alleges each Defendant is liable for:



Direct copyright infringement in violation of 17 U.S.C. §§ 106 and 501;



Contributory copyright infringement;



Direct trademark infringement under 15 U.S.C. § 1125(a); and



Contributory trademark infringement.
Jurisdiction And Venue

3.

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §

1331 (federal question); and 28 U.S.C. § 1338 (patents, copyrights, trademarks and unfair
competition).

{00005826.DOCX:1 }

1

4.

As set forth on Exhibit A, each of the Defendants’ acts of copyright infringement

occurred using an Internet Protocol address (“IP address”) traced to a physical address located
within this District, and therefore this Court has personal jurisdiction over each Defendant
because each Defendant committed the tortious conduct alleged in this Complaint in the State of
New York, and (a) each Defendant resides in the State of New York, and/or (b) each Defendant
has engaged in continuous and systematic business activity, or has contracted anywhere to
supply goods or services in the State of New York.
5.

Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and (c), because:

(i) a substantial part of the events or omissions giving rise to the claims occurred in this District;
and, (ii) a Defendant resides (and therefore can be found) in this District and all of the
Defendants reside in this State; additionally, venue is proper in this District pursuant 28 U.S.C. §
1400(a) (venue for copyright cases) because each Defendant or each Defendant’s agent resides
or may be found in this District.
Parties
6.

Plaintiff is a corporation organized and existing under the laws of the State of

California and has its principal place of business located at 9601 Mason Avenue, Unit B,
Chatsworth, CA.
7.

Each Defendant is known to Plaintiff only by an IP address.

8.

An IP address is a number that is assigned by an Internet Service Provider (an

“ISP”) to devices, such as computers, that are connected to the Internet.
9.

The ISP to which each Defendant subscribes can correlate the Defendant’s IP

address to the Defendant’s true identity.

{00005826.DOCX:1 }

2

Joinder
10.

Pursuant to Fed. R. Civ. P. 20(a)(2), each of the Defendants was properly joined

because, as set forth in more detail below, Plaintiff asserts that: (a) each of the Defendants is
jointly and severally liable for the infringing activities of each of the other Defendants, and (b)
the infringement complained of herein by each of the Defendants was part of a series of
transactions, involving the exact same piece of Plaintiff’s copyrighted Work, and was
accomplished by the Defendants acting in concert with each other, and (c) there are common
questions of law and fact; indeed, the claims against each of the Defendants are identical and
each of the Defendants used the BitTorrent protocol to infringe Plaintiff’s copyrighted Work.
Factual Background
I.

Plaintiff Owns the Copyright to a Motion Picture

11.

On or about April 22, 2011, Plaintiff submitted an application for Copyright

Registration (Service Request Number 1-599790249) for the motion picture titled “Gang Bang
Virgins” (the “Work”).
12.

A copy of the application for Copyright Registration evidencing, among other

things, Plaintiff’s ownership of the Work, application and the application date is attached as
Exhibit B.
II.

Defendants Used BitTorrent To Infringe Plaintiff’s Copyright

13.

BitTorrent is one of the most common peer-to-peer file sharing protocols (in

other words, set of computer rules) used for distributing large amounts of data; indeed, it has
been estimated that users using the BitTorrent protocol on the internet account for over a quarter
of all internet traffic. The creators and user’s of BitTorrent developed their own lexicon for use
when talking about BitTorrent; a copy of the BitTorrent vocabulary list posted on

{00005826.DOCX:1 }

3

www.Wikipedia.com is attached as Exhibit C.
14.

The BitTorrent protocol’s popularity stems from its ability to distribute a large file

without creating a heavy load on the source computer and network. In short, to reduce the load
on the source computer, rather than downloading a file from a single source computer (one
computer directly connected to another), the BitTorrent protocol allows users to join a "swarm"
of host computers to download and upload from each other simultaneously (one computer
connected to numerous computers).
A.

Each Defendant Installed a BitTorrent Client onto his or her Computer

15.

Each Defendant installed a BitTorrent Client onto his or her computer.

16.

A BitTorrent “Client” is a software program that implements the BitTorent

protocol. There are numerous such software programs including µTorrent and Vuze, both of
which can be directly downloaded from the internet.

See www.utorrent.com and

http://new.vuze-downloads.com/.
17.

Once installed on a computer, the BitTorrent “Client” serves as the user’s

interface during the process of uploading and downloading data using the BitTorrent protocol.
B.

The Initial Seed, Torrent, Hash and Tracker

18.

A BitTorrent user that wants to upload a new file, known as an “initial seeder,”

starts by creating a “torrent” descriptor file using the Client he or she installed onto his or her
computer.
19.

The Client takes the target computer file, the “initial seed,” here the copyrighted

Work, and divides it into identically sized groups of bits known as “pieces.”
20.

The Client then gives each one of the computer file’s pieces, in this case, pieces

of the copyrighted Work, a random and unique alphanumeric identifier known as a “hash” and

{00005826.DOCX:1 }

4

records these hash identifiers in the torrent file.
21.

When another peer later receives a particular piece, the hash identifier for that

piece is compared to the hash identifier recorded in the torrent file for that piece to test that the
piece is error-free. In this way, the hash identifier works like an electronic fingerprint to identify
the source and origin of the piece and that the piece is authentic and uncorrupted.
22.

Torrent files also have an "announce" section, which specifies the URL (Uniform

Resource Locator) of a “tracker,” and an "info" section, containing (suggested) names for the
files, their lengths, the piece length used, and the hash identifier for each piece, all of which are
used by Clients on peer computers to verify the integrity of the data they receive.
23.

The “tracker” is a computer or set of computers that a torrent file specifies and to

which the torrent file provides peers with the URL address(es).
24.

The tracker computer or computers direct a peer user’s computer to other peer

user’s computers that have particular pieces of the file, here the copyrighted Work, on them and
facilitates the exchange of data among the computers.
25.

Depending on the BitTorrent Client, a tracker can either be a dedicated computer

(centralized tracking) or each peer can act as a tracker (decentralized tracking).
C.

Torrent Sites

26.

“Torrent sites” are websites that index torrent files that are currently being made

available for copying and distribution by people using the BitTorrent protocol. There are
numerous

torrent

websites,

including

www.TorrentZap.com,

www.Btscene.com,

and

www.ExtraTorrent.com.
27.

Upon information and belief, each Defendant went to a torrent site to upload and

download Plaintiff’s copyrighted Work.

{00005826.DOCX:1 }

5

D.

Uploading and Downloading a Work Through a BitTorrent Swarm

28.

Once the initial seeder has created a torrent and uploaded it onto one or more

torrent sites then other peers begin to download and upload the computer file to which the torrent
is linked (here the copyrighted Work) using the BitTorrent protocol and BitTorrent Client that
the peers installed on their computers.
29.

The BitTorrent protocol causes the initial seed’s computer to send different pieces

of the computer file, here the copyrighted Work, to the peers seeking to download the computer
file.
30.

Once a peer receives a piece of the computer file, here a piece of the Copyrighted

Work, it starts transmitting that piece to the other peers.
31.

In this way, all of the peers and seeders are working together in what is called a

“swarm.”
32.

Here, each Defendant peer member participated in the same swarm and directly

interacted and communicated with other members of that swarm through digital handshakes, the
passing along of computer instructions, uploading and downloading, and by other types of
transmissions. A print out of a computer screen illustrating the type of interactions between and
among peers and seeders in a typical swarm is attached as Exhibit D.
33.

In this way, and by way of example only, one initial seeder can create a torrent

that breaks a movie up into hundreds or thousands of pieces saved in the form of a computer file,
like the Work here, upload the torrent onto a torrent site, and deliver a different piece of the
copyrighted Work to each of the peers. The recipient peers then automatically begin delivering
the piece they just received to the other peers in the same swarm.

{00005826.DOCX:1 }

6

34.

Once a peer, here a Defendant, has downloaded the full file, the BitTorrent Client

reassembles the pieces and the peer is able to view the movie. Also, once a peer has downloaded
the full file, that peer becomes known as “an additional seed” because it continues to distribute
the torrent file, here the copyrighted Work.
E.

Plaintiff’s Computer Investigators Identified Each of the Defendants’ IP
Addresses as Participants in a Swarm That Was Distributing Plaintiff’s
Copyrighted Work

36.

Plaintiff retained IPP, Limited (“IPP”) to identify the IP addresses that are being

used by those people that are using the BitTorrent protocol and the internet to reproduce,
distribute, display or perform Plaintiffs’ copyrighted works.
37.

IPP used forensic software named INTERNATIONAL IPTRACKER v1.2.1 and

related technology enabling the scanning of peer-to-peer networks for the presence of infringing
transactions.
38.

IPP extracted the resulting data emanating from the investigation, reviewed the

evidence logs, and isolated the transactions and the IP addresses associated therewith for the file
identified by the SHA-1 hash value of 53E528A40B95DC17E0010C70189F57A2C9B28252
(the “Unique Hash Number”).
39.

The IP addresses, Unique Hash Number and hit dates contained on Exhibit A

accurately reflect what is contained in the evidence logs, and show:
(A)

Each Defendant had copied a piece of Plaintiff’s copyrighted Work identified by
the Unique Hash Number; and

(B)

Therefore, each Defendant was part of the same series of transactions.

40.

Through each of the transactions, each of the Defendant’s computers used their

identified IP addresses to connect to the investigative server from a computer in this District in

{00005826.DOCX:1 }

7

order to transmit a full copy, or a portion thereof, of a digital media file identified by the Unique
Hash Number.
IPP’s agent analyzed each BitTorrent “piece” distributed by each IP address

41.

listed on Exhibit A and verified that re-assemblage of the pieces using a BitTorrent Client results
in a fully playable digital motion picture of the Work.
42.

IPP’s agent viewed the Work side-by-side with the digital media file that

correlates to the Unique Hash Number and determined that they were identical, strikingly similar
or substantially similar.
Miscellaneous
43.

All conditions precedent to bringing this action have occurred or been waived.

44.

Plaintiff retained counsel to represent it in this matter and is obligated to pay said

counsel a reasonable fee for its services.
COUNT I
Direct Infringement Against Does 1-37.
45.

The allegations contained in paragraphs 1-44 are hereby re-alleged as if fully set

forth herein.
46.

Plaintiff is the owner of the Registration for the Work which contains an original

work of authorship.
47.

By using the BitTorrent protocol and a BitTorrent Client and the processes

described above, each Defendant copied the constituent elements of the registered Work that are
original.
48.

Plaintiff did not authorize, permit or consent to Defendants’ copying of its Work.

49.

As a result of the foregoing, each Defendant violated Plaintiff’s exclusive right to:

(A)

Reproduce the Work in copies, in violation of 17 U.S.C. §§ 106(1) and 501;

{00005826.DOCX:1 }

8

(B)

Redistribute copies of the Work to the public by sale or other transfer of

ownership, or by rental, lease or lending, in violation of 17 U.S.C. §§ 106(3) and 501;
(C)

Perform the copyrighted Work, in violation of 17 U.S.C. §§ 106(4) and 501, by

showing the Work’s images in any sequence and/or by making the sounds accompanying the
Work audible and transmitting said performance of the Work, by means of a device or process,
to members of the public capable of receiving the display (as set forth in 17 U.S.C. § 101’s
definitions of “perform” and “publically” perform); and
(D)

Display the copyrighted Work, in violation of 17 U.S.C. §§ 106(5) and 501, by

showing individual images of the Work nonsequentially and transmitting said display of the
Work by means of a device or process to members of the public capable of receiving the display
(as set forth in 17 U.S.C. § 101’s definition of “publically” display).
50.

Each of the Defendants’ infringements was committed “willfully” within the

meaning of 17 U.S.C. § 504(c)(2).
51.

Plaintiff has suffered actual damages that were proximately caused by each of the

Defendants including lost sales, price erosion and a diminution of the value of its copyright.
WHEREFORE, Plaintiff respectfully requests that the Court:
(A)

Permanently enjoin each Defendant and all other persons who are in active

concert or participation with each Defendant from continuing to infringe Plaintiff’s copyrighted
Work;
(B)

Order that each Defendant delete and permanently remove the torrent file relating

to Plaintiff’s copyrighted Work from each of the computers under each such Defendant’s
possession, custody or control;
(C)

Order that each Defendant delete and permanently remove the copy of the Work

{00005826.DOCX:1 }

9

each Defendant has on the computers under Defendant’s possession, custody or control;
(D)

Award Plaintiff either its actual damages and any additional profits of the

Defendant pursuant to 17 U.S.C. § 504-(a)-(b); or statutory damages in the amount of $150,000
per Defendant pursuant to 17 U.S.C. § 504-(a) and (c);
(E)

Award Plaintiff its reasonable attorneys’ fees and costs pursuant to 17 U.S.C. §

505; and
(F)

Grant Plaintiff any other and further relief this Court deems just and proper.
COUNT II
Contributory Infringement Against Does 1-37.

52.

The allegations contained in paragraphs 1-44 are hereby re-alleged as if fully set

forth herein.
53.

Plaintiff is the owner of the Registration for the Work which contains an original

work of authorship.
54.

By using the BitTorrent protocol and a BitTorrent Client and the processes

described above, each Defendant copied the constituent elements of the registered Work that are
original.
55.

By participating in the BitTorrent swarm with the other Defendants, each

Defendant induced, caused or materially contributed to the infringing conduct of each other
Defendant.
56.

Plaintiff did not authorize, permit or consent to Defendants’ inducing, causing or

materially contributing to the infringing conduct of each other Defendant.
57.

Each Defendant knew or should have known that other BitTorrent users, here the

other Defendants, would become members of a swarm with Defendant.
58.

Each Defendant knew or should have known that other BitTorrent users in a

{00005826.DOCX:1 }

10

swarm with it, here the other Defendants, were directly infringing Plaintiff’s copyrighted Work
by copying constituent elements of the registered Work that are original.
59.

Indeed, each Defendant directly participated in and therefore materially

contributed to each other Defendant’s infringing activities.
60.

Each of the Defendants’ contributory infringements were committed “willfully”

within the meaning of 17 U.S.C. § 504(c)(2).
61.

Plaintiff has suffered actual damages that were proximately caused by each of the

Defendants including lost sales, price erosion, and a diminution of the value of its copyright.
WHEREFORE, Plaintiff respectfully requests that the Court:
(A)

Permanently enjoin each Defendant and all other persons who are in active

concert or participation with each Defendant from continuing to infringe Plaintiff’s copyrighted
Work;
(B)

Order that each Defendant delete and permanently remove the torrent file relating

to Plaintiff’s copyrighted Work from each of the computers under each such Defendant’s
possession, custody or control;
(C)

Order that each Defendant delete and permanently remove the copy of the Work

each Defendant has on the computers under Defendant’s possession, custody or control;
(D)

Find that each Defendant is jointly and severally liable for the direct infringement

of each other Defendant;
(E)

Award Plaintiff either its actual damages and any additional profits made by each

Defendant pursuant to 17 U.S.C. § 504-(a)-(b); or statutory damages in the amount of $150,000
per Defendant pursuant to 17 U.S.C. § 504-(a) and (c);
(F)

Award Plaintiff its reasonable attorneys’ fees and costs pursuant to 17 U.S.C. §

{00005826.DOCX:1 }

11

505; and
(G)

Grant Plaintiff any other and further relief this Court deems just and proper.
COUNT III
Direct Trademark Infringement Against Does 1-37.

62.

The allegations contained in paragraphs 1-44 are hereby re-alleged as if fully set

forth herein.
63.

Plaintiff has expended substantial amounts in the marketing and promotion of the

Work and other motion pictures under the trademarks K-BEECH and CHERRYBOXXX.
64.

As a result of this investment, members of the purchasing public in New York,

throughout the United States and abroad have come to identity and associate the K-BEECH and
CHERRYBOXXX marks with Plaintiff and its merchandise.

Thus, Plaintiff has obtained

common law rights in and to the K-BEECH and CHERRYBOXXX marks.
65.

Each of the Defendant’s unauthorized uses, commercial advertising or promotion

in commerce of the marks K-BEECH and CHERRYBOXXX through their transmission in
torrent files constitutes a false designation of origin, or a false or misleading description or
representation of fact, which is likely to cause confusion, mistake or deceive consumers as to the
association of each of the Defendants with Plaintiff, or as to the nature, characteristics, qualities
or origin of each of the Defendant’s goods, services or commercial activities, or their
sponsorship or approval by Plaintiff.
66.

Each of the Defendant’s unauthorized and misleading uses of the K-BEECH and

CHERRYBOXXX marks constitutes a violation of 15 U.S.C. § 1125(a).
67.

Plaintiff cannot control the nature and quality of the goods, services or

commercial activities offered by each of the Defendants, and any failure, neglect or default by
each of the Defendants in providing same will and does reflect adversely on Plaintiff as their
{00005826.DOCX:1 }

12

believed source or origin, thus hampering efforts by Plaintiff to protect its reputation, and
resulting in loss of sales, a diminution in Plaintiff’s reputation, and/or the need for considerable
expenditures to promote its goods, services or commercial activities under its marks, all to the
irreparable harm of Plaintiff.
68.

Plaintiff’s damages are continuing, and additional injury and damage to Plaintiff

will continue to occur so long as each of the Defendant’s above alleged unauthorized and
infringing uses persists.
69.

Each of the Defendant’s infringements is willful and deliberate, has resulted in

gains, profits and advantages to each of the Defendants, and is designed specifically to trade
upon the goodwill associated with the K-BEECH and CHERRYBOXXX marks.
70.

Plaintiff does not have an adequate remedy at law.

WHEREFORE, Plaintiff respectfully requests that the Court:
(A)

Permanently enjoin each Defendant and all other persons who are in active

concert or participation with each Defendant from continuing their unauthorized and misleading
use of Plaintiff’s trademarks;
(B)

Order that each Defendant delete and permanently remove the torrent file relating

to Plaintiff’s trademarks from each of the computers under each such Defendant’s possession,
custody or control;
(C)

Order that each Defendant delete and permanently remove the copy of the Work

each Defendant has on the computers under Defendant’s possession, custody or control;
(D)

Find that each Defendant is jointly and severally liable for the unauthorized and

misleading use of each other Defendant;
(E)

Awarding Plaintiff three times the profits each of the Defendants has obtained

{00005826.DOCX:1 }

13

from his or her wrongful use of Plaintiff’s trademarks, or Plaintiff’s damages, whichever amount
is greater;
(F)

Award Plaintiff compensatory damages under 15 U.S.C. § 1117;

(G)

Award Plaintiff statutory damages under 15 U.S.C. § 1117;

(H)

Award Plaintiff its attorneys’ fees and costs incurred in this action under 15

U.S.C. § 1117; and
(I)

Grant Plaintiff any other and further relief this Court deems just and proper.
COUNT IV
Contributory Trademark Infringement Against Does 1-37.

71.

The allegations contained in paragraphs 1-44 are hereby re-alleged as if fully set

forth herein.
72.

The actions of each of the Defendants above, and specifically, their participation

and inducement in the distribution of torrent files containing the K-BEECH and
CHERRYBOXXX trademarks to those whom each Defendant knows or has reason to know is
engaging in trademark infringement, constitute contributory trademark infringement in violation
of federal law.
73.

Each act of contributory trademark infringement has resulted in loss of sales, a

diminution in Plaintiff’s reputation, and/or the need for considerable expenditures to promote its
goods, services or commercial activities under its marks, all to the irreparable harm of Plaintiff.
74.

Plaintiff’s damages are continuing, and additional injury and damage to Plaintiff

will continue to occur so long as each of the Defendant’s above alleged unauthorized and
infringing uses persists.
75.

Each of the Defendant’s contributory infringements is willful and deliberate, has

resulted in gains, profits and advantages to each of the Defendants, and is designed specifically
{00005826.DOCX:1 }

14

to trade upon the goodwill associated with the K-BEECH and CHERRYBOXXX marks.
76.

Plaintiff does not have an adequate remedy at law.

WHEREFORE, Plaintiff respectfully requests that the Court:
(A)

Permanently enjoin each Defendant and all other persons who are in active

concert or participation with each Defendant from continuing their unauthorized and misleading
use of Plaintiff’s trademarks;
(B)

Order that each Defendant delete and permanently remove the torrent file relating

to Plaintiff’s trademarks from each of the computers under each such Defendant’s possession,
custody or control;
(C)

Order that each Defendant delete and permanently remove the copy of the Work

each Defendant has on the computers under Defendant’s possession, custody or control;
(D)

Find that each Defendant is jointly and severally liable for the unauthorized and

misleading use of each other Defendant;
(E)

Award Plaintiff damages, and its attorneys’ fees and costs incurred in this action;

(F)

Grant Plaintiff any other and further relief this Court deems just and proper.

and

{00005826.DOCX:1 }

15

DEMAND FOR A JURY TRIAL
Plaintiff hereby demands a trial by jury on all issues so triable.

Respectfully submitted,
LAW OFFICE OF FREDERIC R.
ABRAMSON
By:

{00005826.DOCX:1 }

16

/s/ Frederic R. Abramson
Frederic R. Abramson (FA3918)
Attorneys for Plaintiff
160 Broadway, Suite 500
New York, NY 10038
(P) 212-233-0666
(F) 212-267-7571
Email: [e-mail]