Blue Spike, LLC v. Audible Magic Corporation et al

Filing 1

COMPLAINT against Audible Magic Corporation, Boodabee Technologies Inc., Brightcove, Inc., Coincident.TV, Inc., Dailymotion S.A., Dailymotion, Inc., Facebook, Inc., GoMiso, Inc, Harmonix Music Systems, Inc., Mediafire, LLC, Metacafe, Inc., MySpace, LLC, Myxer, Inc., Photobucket.com, Inc., Qlipso Media Networks Ltd., Qlipso, Inc., Soundcloud Ltd., Soundcloud, Inc., Specific Media, LLC, TuneCore, Inc., Yap.tv, Inc., Zedge Holdings, Inc., iMesh, Inc. ( Filing fee $ 350 receipt number 0540-3749974.), filed by Blue Spike, LLC. (Attachments: #1 Civil Cover Sheet, #2 Exhibit A - Patent 8214175, #3 Exhibit B - Patent 7949494, #4 Exhibit C - Patent 7660700, #5 Exhibit D - Patent 7346472)(Albritton, Eric)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
BLUE SPIKE, LLC,
Plaintiff,
v.
AUDIBLE MAGIC CORPORATION,
FACEBOOK, INC., MYSPACE, LLC,
SPECIFIC MEDIA, LLC,
PHOTOBUCKET.COM, INC.,
DAILYMOTION, INC.,
DAILYMOTION S.A., SOUNDCLOUD,
INC., SOUNDLCOUD LTD., MYXER,
INC., QLIPSO, INC., QLIPSO MEDIA
NETWORKS LTD., YAP.TV, INC.,
GOMISO, INC., IMESH, INC.,
METACAFE, INC., BOODABEE
TECHNOLGIES INC., TUNECORE,
INC., ZEDGE HOLDINGS, INC.,
BRIGHTCOVE INC.,
COINCIDENT.TV, INC., ACCEDO
BROADBAND NORTH AMREICA,
INC., ACCEDO BROADBAND AB, and
MEDIAFIRE, LLC,
Defendants.

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Civil Action No. 6:12-CV-576
JURY TRIAL DEMANDED

ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
Plaintiff Blue Spike, LLC files this complaint against Defendants Audible Magic
Corporation (“Audible Magic”), Facebook, Inc. (“Facebook”), MySpace, LLC and Specific
Media, LLC (“MySpace”), Photobucket.com, Inc. (“Photobucket”), Dailymotion, Inc. and
Dailymotion S.A. (collectively, “Dailymotion”), Soundcloud, Inc. and Soundcloud Ltd.
(collectively, “Soundcloud”), Myxer, Inc. (“Myxer”), Qlipso, Inc. and Qlipso Media Networks

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Ltd. (“Qlipso”), Yap.tv, Inc. (“Yap.tv”), GoMiso, Inc. (“GoMiso”), iMesh, Inc. (“iMesh”),
Metacafe, Inc. (“Metacafe”), Boodabee Technologies Inc. (“Boodabee”), TuneCore, Inc.
(“TuneCore”), Zedge Holdings, Inc. (“Zedge”), Harmonix Music Systems, Inc., Brightcove, Inc.
(“Brightcove”), Coincident.TV, Inc. (“Coincident”) and MediaFire, LLC (“MediaFire”)
(collectively, “Defendants”) and alleges infringement of U.S. Patent Nos. 7,346,472 (the ’472
Patent), 7,660,700 (the ’700 Patent), 7,949,494 (the ’494 Patent), and 8,214,175 (the ’175 Patent,
and together with the ’472, ’700, and ’494 Patents, the Patents-in-Suit) as follows:
NATURE OF THE SUIT
1.

This is a claim for patent infringement arising under the patent laws of the United States,

Title 35 of the United States Code.
PARTIES
2.

Plaintiff Blue Spike, LLC is a Texas limited liability company and has its headquarters

and principal place of business at 1820 Shiloh Road, Suite 1201-C, Tyler, Texas 75703. Blue
Spike, LLC is the assignee of the Patents-in-Suit from Blue Spike, Inc. (a Florida corporation),
which was the assignee of the Patents-in-Suit from Scott Moskowitz and Michael Berry. Blue
Spike, LLC and Blue Spike, Inc. are collectively referred to as “Blue Spike.” Blue Spike CEO
Scott Moskowitz is an inventor on more than 66 U.S. Patents related to managing, monitoring,
and monetizing digital content and informational assets. Blue Spike has practiced and has
continued business plans to practice Moskowitz’s patented inventions. Many of Blue Spike’s
patents are foundational to today’s robust markets for content, which grew into their present form
only after using Blue Spike’s technology to catalogue, manage, monitor, and monetize that
content.

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3.

On information and belief, Defendant Audible Magic is a California corporation, having

its principal place of business at 985 University Avenue, Suite 35, Los Gatos, California 95032.
Audible Magic can be served with process through its registered agent, CAL Title-Search, Inc.,
located at 1005 12th Avenue, Suite E, Sacramento, California 95814. Audible Magic does
business in the State of Texas and in the Eastern District of Texas.
4.

On information and belief, Defendant Facebook is a Delaware corporation, having its

principal place of business at 1601 Willow Road, Menlo Park, California 94025. Facebook can
be served with process through its registered agent, Corporation Service Company, located at 211
E. 7th Street, Suite 620, Austin, Texas 78701. Facebook does business in the State of Texas and
in the Eastern District of Texas.
5.

On information and belief, Defendant MySpace, LLC is a Delaware corporation, having

its principal place of business at 407 North Maple Drive, Beverly Hills, California 90210.
MySpace can be served with process through its registered agent, CT Corporation System,
located at 350 N. St. Paul Street, Suite 2900, Dallas, Texas 75201. MySpace does business in the
State of Texas and in the Eastern District of Texas.
6.

On information and belief, Defendant Specific Media, LLC is a Delaware corporation,

having its principal place of business at 4 Park Plaza, Suite 1500, Irvine, California 92614.
MySpace can be served with process through its registered agent, Corporation Service Company,
located at 211 E. 7th Street, Suite 620, Austin, Texas 78701. MySpace does business in the State
of Texas and in the Eastern District of Texas.
7.

On information and belief, Defendant Dailymotion, Inc. is a Delaware corporation,

having its principal place of business at 80 5th Avenue, New York, New York 10011.
Dailymotion, Inc. can be served with process through its registered agent, National Registered

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Agents, Inc., located at 160 Greentree Drive, Ste. 101, Dover, Delaware, 19904. Dailymotion,
Inc. does business in the State of Texas and in the Eastern District of Texas.
8.

On information and belief, Defendant Dailymotion S.A. is a French limited liability

company, having its principal place of business at 49/51 rue Ganneron, 75018 Paris, France.
Dailymotion S.A. can be served with process through its U.S. subsidiary, Dailymotion, Inc., or
through the Texas Secretary of State. Dailymotion S.A. does business in the State of Texas and
in the Eastern District of Texas.
9.

On information and belief, Defendant Soundcloud, Inc. is a Delaware corporation, having

its principal place of business at 801 California Street, Mountain View, California 94041.
Soundcloud, Inc. can be served with process through its registered agent, Corporation Service
Company, located at 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808.
Soundcloud, Inc. does business in the State of Texas and in the Eastern District of Texas.
10.

On information and belief, Defendant Soundcloud Ltd. is a German limited liability

company, having its principal place of business Rosenthaler Str. 13, 10119 Berlin, Germany.
Soundcloud Ltd. can be served with process through its U.S. subsidiary, Soundcloud, Inc., or
through the Texas Secretary of State. Soundcloud Ltd. does business in the State of Texas and in
the Eastern District of Texas.
11.

On information and belief, Defendant Myxer is a Delaware corporation, having its

principal place of business at 245 N. Ocean Blvd., Suite 200, Deerfield Beach, Florida 33441.
Myxer can be served with process through its registered agent, The Corporation Trust Company,
located at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. Myxer
does business in the State of Texas and in the Eastern District of Texas.

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12.

On information and belief, Defendant Qlipso, Inc. is a Delaware corporation, having its

principal place of business at 2434 Main Street, Suite 202, Santa Monica, California 90405.
Qlipso, Inc. can be served with process through its registered agent, PHS Corporate Services,
Inc., located at 1313 North Market Street, Suite 5100, Wilmington, Delaware 19801. Qlipso, Inc.
does business in the State of Texas and in the Eastern District of Texas.
13.

On information and belief, Defendant Qlipso Media Networks Ltd. is an Israeli limited

liability company, having its principal place of business 2434 Main Street, Suite 202, Santa
Monica, California 90405. Qlipso Media Networks Ltd. can be served with process through its
U.S. subsidiary, Qlipso, Inc., or through the Texas Secretary of State. Qlipso Media Networks
Ltd. does business in the State of Texas and in the Eastern District of Texas.
14.

On information and belief, Defendant Yap.tv is a Delaware corporation, having its

principal place of business at 4966 El Camino Real, Suite 223, Los Altos, CA, 94022. Yap.tv can
be served with process through its registered agent, The Corporation Trust Company, located at
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. Yap.tv does
business in the State of Texas and in the Eastern District of Texas.
15.

On information and belief, Defendant GoMiso is a Delaware corporation, having its

principal place of business at 580 Howard Street, San Francisco, California 94105. GoMiso can
be served with process through its registered agent, Incorporating Services, Ltd., located at 3500
South DuPont Highway, Dover, Delaware 19901. GoMiso does business in the State of Texas
and in the Eastern District of Texas.
16.

On information and belief, Defendant iMesh is a Delaware corporation, having its

principal place of business at 211 East 43rd Street, #23, New York, New York 10017. iMesh can
be served with process through its registered agent, Corporation Service Company, located at

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2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. iMesh does business in the
State of Texas and in the Eastern District of Texas.
17.

On information and belief, Defendant Metacafe is a Delaware corporation, having its

principal place of business at 128 King Street, 3rd Floor, San Francisco, California 94107.
Metacafe can be served with process through its registered agent, The Corporation Trust
Company, located at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801. Metacafe does business in the State of Texas and in the Eastern District of Texas.
18.

On information and belief, Defendant Boodabee is a Florida corporation, having its

principal place of business at 3787 Palm Valley Road, Suite 102-137, Ponte Vedra Beach, Florida
32082. Boodabee can be served with process through its registered agent, John Coogan, located
at 1133 Pine Mill Lane, Ponte Verde Beach, Florida 32082. Boodabee does business in the State
of Texas and in the Eastern District of Texas.
19.

On information and belief, Defendant Tunecore is a Delaware corporation, having its

principal place of business at 55 Washington Street, Suite 822, Brooklyn, New York 11201.
Tunecore can be served with process through its registered agent, The Corporation Trust
Company, located at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801. Tunecore does business in the State of Texas and in the Eastern District of Texas.
20.

On information and belief, Defendant Zedge is a Delaware corporation, having its

principal place of business at 22 Cortlandt Street, 12th Floor, New York, New York 10007. Zedge
can be served with process through its registered agent, Corporation Service Company, located at
2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. Zedge does business in the
State of Texas and in the Eastern District of Texas.

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21.

On information and belief, Defendant Harmonix is a Delaware corporation, having its

principal place of business at 625 Massachusetts Avenue, 2nd Floor, Cambridge, Massachusetts
02139. Harmonix can be served with process through its registered agent, The Corporation Trust
Company, located at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801. Harmonix does business in the State of Texas and in the Eastern District of Texas.
22.

On information and belief, Defendant Brightcove is a Delaware corporation, having its

principal place of business at 290 Congree Street, 4th Floor, Boston, Massachusetts 02110.
Brightcove can be served with process through its registered agent, The Corporation Trust
Company, located at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801. Brightcove does business in the State of Texas and in the Eastern District of Texas.
23.

On information and belief, Defendant Coincident is a Delaware corporation, having its

principal place of business at 3435 Cesar Chavez, Penthouse, San Francisco, California 94110.
Coincident can be served with process through its registered agent, Incorporating Services, Ltd.,
located at 3500 South DuPont Highway, Dover, Delaware 19901. Coincident does business in the
State of Texas and in the Eastern District of Texas.
24.

On information and belief, Defendant Accedo Broadband North America, Inc. is a

Delaware corporation, having its principal place of business at 480 San Antonio Road, Suite 130,
Mountain View, California 94040. Accedo Broadband North America, Inc. can be served with
process through its registered agent, Corporation Service Company, located at 2711 Centerville
Road, Suite 400, Wilmington, Delaware 19808. Accedo Broadband North America, Inc. does
business in the State of Texas and in the Eastern District of Texas.
25.

On information and belief, Defendant Accedo Broadband AB is a Swedish company,

having its principal place of business at Heliosgatan 26, 120 30 Stockholm, Sweden. Accedo

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Broadband AB can be served with process through its U.S. subsidiary, Accedo Broadband North
America, Inc., or through the Texas Secretary of State. Accedo Broadband AB does business in
the State of Texas and in the Eastern District of Texas.
26.

On information and belief, Defendant MediaFire is a Texas limted liability company,

having its principal place of business at 19241 David Memorial Drive #170, Shenandoah, Texas
77385. MediaFire can be served with process through its registered agent, Derek Labian, located
at 19241 David Memorial Drive #170, Shenandoah, Texas 77385. MediaFire does business in the
State of Texas and in the Eastern District of Texas.
JURISDICTION AND VENUE
27.

This lawsuit is a civil action for patent infringement arising under the patent laws of the

United States, 35 U.S.C. §101 et seq. The Court has subject-matter jurisdiction pursuant to 28
U.S.C. §§1331, 1332, 1338(a), and 1367.
28.

The Court has personal jurisdiction over Defendants for at least four reasons:

(1) Defendants have committed acts of patent infringement and contributed to and induced acts
of patent infringement by others in this District and elsewhere in Texas; (2) Defendants regularly
do business or solicit business in the District and in Texas; (3) Defendants engage in other
persistent courses of conduct and derive substantial revenue from products and/or services
provided to individuals in the District and in Texas; and (4) Defendants have purposefully
established substantial, systematic, and continuous contacts with the District and should
reasonably expect to be haled into court here. Thus, the Court’s exercise of jurisdiction over
Defendants will not offend traditional notions of fair play and substantial justice.
29.

Venue is proper in this judicial district under 28 U.S.C. §§1391(b)–(c) and 1400(b)

because Defendants do business in the State of Texas, Defendants have committed acts of

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infringement in Texas and in the District, a substantial part of the events or omissions giving rise
to Blue Spike’s claims happened in the District, and Defendants are subject to personal
jurisdiction in the District.
JOINDER
30.

The defendants are properly joined in this action because (1) Blue Spike seeks relief,

jointly and severally, against some defendants that have a parent or subsidiary relationship;
(2) the defendants’ infringing acts arise out of the same transaction, occurrence, or series of
transactions or out of occurrences relating to the making, using, offering for sale, or selling of the
accused products in this action; and (3) questions of fact common to all defendants will arise in
the action. More specifically, on information and belief, each of the defendants’ accused products
and methods use the common and related infringing technologies—Audible Magic’s digital
fingerprint based technology for automatic content recognition. For these reasons, infringement
issues for all defendants in this case will focus on one or two common and related automatic
content recognition systems using fingerprint technology purchased from a single company,
resulting in substantial evidentiary overlap in the operation of the accused products as applied to
the claims of the Patents-in-Suit.
FACTUAL BACKGROUND
A.

Moskowitz’s History

31.

The owners of art, music, films, and other creations who want to sell and license their

work in digital form over the Internet need an efficient way to manage, monitor, and monetize it.
Blue Spike founder Scott Moskowitz pioneered—and continues to invent—technology that
makes such management possible, and which has parlayed with equal importance into other
industries.

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32.

Moskowitz, who earned two degrees cum laude from the Wharton School of Finance and

Commerce at the University of Pennsylvania, is an inventor of more than 66 U.S. Patents,
including each of the Patents-in-Suit.
33.

In 1992, Moskowitz entered the entertainment industry by doing agency work in Japan

for a large U.S. wholesaler of music-related products.
34.

In 1993, Moskowitz filed his first U.S. digital-content-management patent application.

That year, he also founded the software start-up The Dice Company, which would become
widely recognized as a leader in digital watermarking. Since that first patent, Moskowitz has
continued to create patented inventions in the field of information management and security at a
prodigious pace. His goal from the outset has been to commercialize his patented inventions.
35.

Moskowitz founded Blue Spike, Inc. in November 1997. Just over two years later, he

filed his first patent application related to signal recognition technology, which issued as the ’472
Patent. In describing this pioneering technology, Moskowitz coined the term “signal abstracting,”
which enhanced the ability to catalogue, archive, identify, authorize, transact, and monitor the
use and/or application of signals, such as images (for example, photographs, paintings, and
scanned fingerprints), audio (for example, songs, jingles, commercials, movies soundtracks, and
their versions), video (for example, videos, television shows, commercials, and movies), and
multimedia works. This revolutionary technology greatly improves the efficiency and speed of
monitoring, analyzing, and identifying signals as perceived, as well as enabling the optimal
compression of the signals and their associated signal abstracts for memory accommodation.
36.

Moskowitz’s status as a pioneer in this new field between cryptography and signal

analysis is evident from the United States Patent and Trademark Office’s categorization of his
patent applications. The USPTO was initially puzzled about how to classify his early inventions,

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as the then-existing patent categories in cryptography and signal analysis were, by themselves,
inadequate. The USPTO therefore created a new classification for his groundbreaking
inventions: classification 713, subclass 176, called “Authentication by digital signature
representation or digital watermark.”
37.

The National Security Agency (NSA) even took interest in his work after he filed one of

his early patent applications. The NSA made the application classified under a “secrecy order”
while it investigated his pioneering innovations and their impact on national security.
38.

As an industry trailblazer, Moskowitz has been an active author and public figure on

digital-watermarking and signal-recognition technologies since their emergence. A 1995 New
York Times article—titled “TECHNOLOGY: DIGITAL COMMERCE; 2 plans for watermarks,
which can bind proof of authorship to electronic works”—recognized Moskowitz’s The Dice
Company as one of two leading software start-ups in this newly created field. Forbes also
interviewed Moskowitz as an expert for “Cops Versus Robbers in Cyberspace,” a September 9,
1996 article about the emergence of digital watermarking and rights-management technology. He
has also testified before the Library of Congress regarding the Digital Millennium Copyright Act.
39.

He has spoken to the RSA Data Security Conference, the International Financial

Cryptography Association, Digital Distribution of the Music Industry, and many other
organizations about the business opportunities that digital watermarking creates. Moskowitz also
authored So This Is Convergence?, the first book of its kind about secure digital-content
management. This book has been downloaded over a million times online and has sold thousands
of copies in Japan, where Shogakukan published it under the name Denshi Skashi, literally
“electronic watermark.” Moskowitz was asked to author the introduction to Multimedia Security
Technologies for Digital Rights Management, a 2006 book explaining digital-rights management.

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Moskowitz authored a paper for the 2002 International Symposium on Information Technology,
titled “What is Acceptable Quality in the Application of Digital Watermarking: Trade-offs of
Security, Robustness and Quality.” He also wrote an invited 2003 article titled “Bandwidth as
Currency” for the IEEE Journal, among other publications.
40.

Moskowitz is a senior member of the Institute of Electrical and Electronics Engineers

(IEEE), a member of the Association for Computing Machinery, and the International Society for
Optics and Photonics (SPIE). As a senior member of the IEEE, Moskowitz has peer-reviewed
numerous conference papers and has submitted his own publications.
41.

Moskowitz has been at the forefront of industry-based tests—such as the MUSE

Embedded Signaling Tests, Secure Digital Music Initiative (“SDMI”), and various tests by
performance-rights organizations including ASCAP and BMI, as well as Japan’s Nomura
Research Institute.
42.

Moskowitz has negotiated projects to incorporate his technologies with leaders in a

gamut of industries. For example, Moskowitz worked with EMI, Warner Brothers, and Universal
Music Group on music-release tracking systems; with AIG on insurance and financial services;
with IBM on watermarking its software and managing movie scripts; and with Juniper Networks
on measuring and provisioning the bandwidth used on its routers. Blue Spike is also registered
with the Federal Government’s Central Contractor Registry (managed under the System for
Award Management, “SAM”) and participated in the Department of Defense Small Business
Innovative Research (SBIR) program.
43.

Moskowitz and his companies have always practiced or had business plans to practice his

patented inventions. He has worked extensively to ensure that his technology’s powerful and
patented Giovanni® suite of media security technologies can be licensed to all. Before the

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industry understood where digital management of content was heading, Moskowitz believed that
copyright management was an invaluable element for dramatically expanding the business of
music, emphasizing that security must not be shrouded in secrecy and that his patented
techniques were the strongest to do so.
44.

Moskowitz and Blue Spike continued to produce new versions of its popular digital-

watermarking tools. Under Moskowitz’s control, Blue Spike also developed its unique
Scrambling technologies, which continue to gain currency. Moskowitz and Blue Spike rolled out
its “end-to-end” solution for music security. Music encoded with Blue Spike’s watermark had
both security and CD-quality sound, even when integrated with text, image, and video content.
To this day, Moskowitz and Blue Spike are working with artists to help them manage and secure
their valuable artistic contributions from its office in Tyler, Texas.
B.

Patents-in-Suit

45.

As content becomes increasingly profitable and prevalent in the U.S. and around the

globe, pirates will continue to proliferate and use increasingly sophisticated technologies to steal
and illegally copy others’ work, especially those works that are digitally formatted or stored. The
Patents-in-Suit comprise, in part, what Moskowitz has coined “signal abstracting,” which
encompasses techniques, among others, also known as “signal fingerprinting,” “acoustic
fingerprinting,” or “robust hash functions.” These are among the most effective techniques
available for combating piracy, which are completely undetectable to the thief, yet still enable
content owners to easily search through large amounts of data to identify unauthorized copies of
their works.
46.

Broadly speaking, “signal abstracting” identifies digital information and material—

including video, audio, graphics, multimedia, and text—based solely on the perceptual

13

characteristics of the material itself. If desired, however, the abstract need not be static, and
other information or heuristics can be used to augment the perceptual characteristics, resulting in
a more robust abstract. In contrast, other technologies (such as digital watermarking) embed
additional information or messages into the original source material to enable traceability of the
subsequently watermarked content, much like an audit trail or the serial number on a dollar bill.
When a pirate attempts to remove embedded information or messages, ideally the quality of the
content may be degraded, making the tampered copies unusable or of such poor quality that they
have little commercial value. Signal abstracting avoids watermarking’s vulnerabilities by leaving
the source signal unchanged and catalogues the signal’s identifying features or perceptual
characteristics in a database.
47.

Content owners can also then monitor and analyze distribution channels, such as the

Internet, radio broadcasts, television broadcasts, and other media sources, to determine whether
any content from those sources has the same abstract as their catalogued works. Unauthorized
versions of copies of content may then be successfully identified. With the unauthorized copies
identified, the content owner can then restrict access, compel payment for authorized use, and
develop better intelligence about content markets and those consumers with a willingness to pay.
In some cases, new versions of the content can be observed and analyzed, creating more robust
abstracts or new abstracts entirely, informing owners and content aggregators about new
channels or new opportunities for consumption of their content.
48.

Similarly, content recognition applications running on mobile devices, smartphones, and

tablets can use abstracts to identify content for users who would like to know what it is they are
listening to (such as applications that just identify content) or would like to know more about that
content (such as applications that are now popularly known as “second screen applications,”

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which allow a television audience to identify and interact with the content they are consuming,
whether it be, for example, TV shows, movies, music, or video games). Once identified by an
abstract, songwriters, for example, can be given lyrics, or budding video producers can be
provided related versions or background on a video identified. Thus, value add in markets can be
adjusted to meet the specific needs and consumption patterns of users.
49.

This idea of “signal abstracting” applies equally to biometric identification and today’s

security systems, such as fingerprint, facial, and optic systems that analyze, catalogue, monitor,
and identify a person’s biometric features. Once an image is created from the features of these
biometric identifiers, signal abstracting can be used to optimally compress the signal and its
associated abstract, resulting in less memory usage and increased accuracy and speed of signal
analysis and identification. Further, signal abstracts of the biometric information can be secured
independently; this means that authentication and verification of the identifying abstract do not
compromise the original information. This separation of the abstracts from the original source
material enables more secure environments, such as those dealing with the security of a person’s
biometrics. Thus, fingerprint scanners are made more secure, as are systems requiring physical
scans of a person’s body. The recent evolution to smaller and cheaper processors and memory
storage has led to the proliferation of these biometric-identification systems, which rely on the
inventions of the Patents-in-Suit to be implemented.
50.

The four Patents-in-Suit are prime examples of Moskowitz’s pioneering contributions to

signal recognition technology.
C.

The Accused Products and Services

51.

Audible Magic designs and develops software, systems, and technology for content

recognition using digital fingerprinting to monetize, protect, measure, engage, and verify content.

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Audible Magic makes, uses, offers for sale and/or imports into the U.S. products, systems and/or
services including, but not limited to, its Live TViD, SmartSync, CopySense, SmartID, Audini
and automated content recognition (ACR) digital fingerprint-based software, systems, and
technology (“Audible Magic Accused Products”), which infringe one or more claims of the
Patents-in-Suit.
52.

Facebook designs and develops software, systems, applications, and technology for social

networking. Facebook makes, uses, offers for sale and/or imports into the U.S. products, systems
and/or services including, but not limited to, its Facebook website and application copyrighted
content recognition software, systems, applications, and technology

(“Facebook Accused

Products”), which infringe one or more claims of the Patents-in-Suit.
53.

MySpace designs and develops software, systems, applications, and technology for social

networking and entertainment. MySpace makes, uses, offers for sale and/or imports into the U.S.
products, systems and/or services including, but not limited to, its MySpace website and
application copyrighted content recognition software, systems, applications, and technology
(“MySpace Accused Products”), which infringe one or more claims of the Patents-in-Suit.
54.

Photobucket designs and develops software, systems, applications, and technology to

store, create and share photos and videos. Photobucket is extremely successful, with more than
23 million monthly unique users in the U.S. who upload over four million images and videos per
day. Photobucket makes, uses, offers for sale and/or imports into the U.S. products, systems
and/or services including, but not limited to, its Photobucket website and application copyrighted
content recognition software, systems, applications, and technology (“Photobucket Accused
Products”), which infringe one or more claims of the Patents-in-Suit.

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55.

Dailymotion designs and develops software, systems, applications, and technology for

sharing videos. Dailymotion is extremely successful, with over 110 million unique monthly
visitors and 1.8 billion videos views worldwide. Dailymotion makes, uses, offers for sale and/or
imports into the U.S. products, systems and/or services including, but not limited to, its
Dailymotion website and application copyrighted content recognition software, systems,
applications, and technology (“Dailymotion Accused Products”), which infringe one or more
claims of the Patents-in-Suit.
56.

Soundcloud designs and develops software, systems, applications, and technology for

creating and sharing music. Soundcloud is extremely successful, with over 10 million registered
users and over 5 million downloads of its application. Soundcloud makes, uses, offers for sale
and/or imports into the U.S. products, systems and/or services including, but not limited to, its
Soundcloud website and application copyrighted content recognition software, systems,
applications, and technology (“Soundcloud Accused Products”), which infringe one or more
claims of the Patents-in-Suit.
57.

Myxer designs and develops software, systems, applications, and technology for social

networking and entertainment. Myxer is extremely successful, with over 53 million users that
have performed more than 3 billion downloads. Myxer makes, uses, offers for sale and/or
imports into the U.S. products, systems and/or services including, but not limited to, its Myxer
website and application copyrighted content recognition software, systems, applications, and
technology (“Myxer Accused Products”), which infringe one or more claims of the Patents-inSuit.
58.

Qlipso designs and develops software, systems, applications, and technology for social

networking and sharing. Qlipso makes, uses, offers for sale and/or imports into the U.S.

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products, systems and/or services including, but not limited to, its Veoh website and application
copyrighted content recognition software, systems, applications, and technology

(“Qlipso

Accused Products”), which infringe one or more claims of the Patents-in-Suit.
59.

Yap.tv designs and develops software, systems, applications, and technology to be used

with smartphones and tablets so that users can identify and engage media and content. Yap.tv
makes, uses, offers for sale and/or imports into the U.S. products, systems and/or services
including, but not limited to, its Yap.tv smartphone and tablet software, systems, applications,
and technology (“Yap.tv Accused Products”), which infringe one or more claims of the Patentsin-Suit.
60.

GoMiso designs and develops software, systems, applications, and technology to be used

with smartphones and tablets so that users can identify and engage media and content. GoMiso
makes, uses, offers for sale and/or imports into the U.S. products, systems and/or services
including, but not limited to, its Miso smartphone and tablet software, systems, applications, and
technology (“GoMiso Accused Products”), which infringe one or more claims of the Patents-inSuit.
61.

iMesh designs and develops software, systems, applications, and technology for social

networking and sharing. iMesh is extremely successful, being the first (and thus far the only) file
sharing service to announce an agreement with the US major record labels. iMesh makes, uses,
offers for sale and/or imports into the U.S. products, systems and/or services including, but not
limited to, its iMesh website and application copyrighted content recognition software, systems,
applications, and technology (“iMesh Accused Products”), which infringe one or more claims of
the Patents-in-Suit.

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62.

Metacafe designs and develops software, systems, applications, and technology for short-

form video entertainment, specializing in movies, video games and live action sports. Metacafe
is extremely successful, as a top-3 video site in the U.S., with 12 million unique monthly
viewers. Metacafe makes, uses, offers for sale and/or imports into the U.S. products, systems
and/or services including, but not limited to, its Metacafe website and application copyrighted
content recognition software, systems, applications, and technology

(“Metacafe Accused

Products”), which infringe one or more claims of the Patents-in-Suit.
63.

Boodabee designs and develops software, systems, applications, and technology to be

used with smartphones and tablets so that users can identify and engage media and content.
Boodabee makes, uses, offers for sale and/or imports into the U.S. products, systems and/or
services including, but not limited to, its Boodabee smartphone and tablet software, systems,
applications, and technology (“Boodabee Accused Products”), which infringe one or more
claims of the Patents-in-Suit.
64.

Tunecore designs and develops software, systems, applications, and technology for

manage, distribute, and monetize content. Tunecore makes, uses, offers for sale and/or imports
into the U.S. products, systems and/or services including, but not limited to, its Tunecore online
distribution service software, systems, applications, and technology

(“Tunecore Accused

Products”), which infringe one or more claims of the Patents-in-Suit.
65.

Zedge designs and develops software, systems, applications, and technology for social

networking and sharing. Zedge is extremely successful, with more than 42 million unique users
per month, downloading 7 million items every day. Zedge makes, uses, offers for sale and/or
imports into the U.S. products, systems and/or services including, but not limited to, its Zedge
website and application copyrighted content recognition software, systems, applications, and

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technology (“Zedge Accused Products”), which infringe one or more claims of the Patents-inSuit.
66.

Harmonix designs and develops software, systems, applications, and technology for

social networking and sharing. Harmonix makes, uses, offers for sale and/or imports into the
U.S. products, systems and/or services including, but not limited to, its RockBand.com,
TheBeatlesRockBand.com,

DanceCentral.com,

GreenDayRockBand.com,

vidrhythm.com,

HarmonixMusic.com websites and applications copyrighted content recognition software,
systems, applications, and technology (“Harmonix Accused Products”), which infringe one or
more claims of the Patents-in-Suit.
67.

Brightcove designs and develops software, systems, applications, and technology for

cloud content services. Brightcove makes, uses, offers for sale and/or imports into the U.S.
products, systems and/or services including, but not limited to, its Brightcove Video Cloud and
App Cloud software, systems, applications, and technology (“Brightcove Accused Products”),
which infringe one or more claims of the Patents-in-Suit.
68.

Coincident designs and develops software, systems, applications, and technology that

enables content creators and distributors to easily design, manage and measure interactive video
experiences across all digital platforms and on devices including TV’s, tablets, phones, consoles
and set-top boxes. Coincident makes, uses, offers for sale and/or imports into the U.S. products,
systems and/or services including, but not limited to, its ScreenSync TV smartphone and tablet
software, systems, applications, and technology

(“Coincident Accused Products”), which

infringe one or more claims of the Patents-in-Suit.
69.

MediaFire designs and develops software, systems, applications, and technology for

cloud storage and sharing services. MediaFire makes, uses, offers for sale and/or imports into the

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U.S. products, systems and/or services including, but not limited to, its MediaFire cloud storage
services’ copyrighted content recognition software, systems, applications, and technology
(“MediaFire Accused Products”), which infringe one or more claims of the Patents-in-Suit.
70.

Collectively, all of the Defendants accused products identified above are referred to as

“Accused Products.”
71.

Defendants have not sought or obtained a license for any of Blue Spike’s patented

technologies.
72.

Yet Defendants are using methods, devices, and systems taught by Blue Spike’s Patents-

in-Suit.
COUNT 1:
INFRINGEMENT OF U.S. PATENT NO. 8,214,175
73.

Blue Spike incorporates by reference the allegations in paragraphs 1 through 72 of this

complaint.
74.

Blue Spike, LLC is assignee of the ’175 Patent, titled “Method and Device for

Monitoring and Analyzing Signals,” and has ownership of all substantial rights in the ’175
Patent, including the rights to grant sublicenses, to exclude others from using it, and to sue and
obtain damages and other relief for past and future acts of patent infringement.
75.

The ’175 Patent is valid, is enforceable, and was duly and legally issued on July 3, 2012.

A true and correct copy of the ’175 Patent is attached as Exhibit A.
76.

Without a license or permission from Blue Spike, Defendants have infringed and

continue to infringe on one or more claims of the ’175 Patent—directly, contributorily, or by
inducement—by importing, making, using, offering for sale, or selling products and devices that
embody the patented invention, including, without limitation, one or more of the Accused
Products, in violation of 35 U.S.C. §271.

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77.

Defendants have been and now are indirectly infringing by way of inducing infringement

by others and/or contributing to the infringement by others of the ’175 Patent in the State of
Texas, in this judicial district, and elsewhere in the United States, by, among other things,
making, using, importing, offering for sale, and/or selling, without license or authority, products
for use in systems that fall within the scope of one or more claims of the ’175 Patent. Such
products include, without limitation, one or more of the Accused Products. Such products have
no substantial non-infringing uses and are for use in systems that infringe the ’175 Patent. By
making, using, importing offering for sale, and/or selling such products, Defendants injured Blue
Spike and are thus liable to Blue Spike for infringement of the ’175 Patent under 35 U.S.C. §
271. Those whom Defendants induce to infringe and/or to whose infringement Defendants
contribute are the end users of the Accused Products. Defendants had knowledge of the ’175
Patent at least as early as the service of this complaint and are thus liable for infringement of one
or more claims of the ’175 Patent by actively inducing infringement and/or are liable as
contributory infringers of one or more claims of the ’175 Patent under 35 U.S.C. §271.
78.

Defendants’ acts of infringement of the ’175 Patent have caused damage to Blue Spike,

and Blue Spike is entitled to recover from Defendants the damages sustained as a result of
Defendants’ wrongful acts in an amount subject to proof at trial pursuant to 35 U.S.C. §271.
Defendants’ infringement of Blue Spike’s exclusive rights under the ’175 Patent will continue to
damage Blue Spike, causing it irreparable harm, for which there is no adequate remedy at law,
warranting an injunction from the Court.
79.

On information and belief, Defendants have continued to infringe the ’175 Patent since

receiving notice of their infringement, at least by way of their receiving notice of this lawsuit. On
information and belief, such continued infringement has been objectively reckless because

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Defendants have (1) acted despite an objectively high likelihood that their actions constituted
infringement of a valid patent and (2) knew or should have known of that objectively high risk.
Accordingly, Blue Spike seeks a willfulness finding against Defendants relative to their
infringement of the ’175 Patent entitling Blue Spike to increased damages under 35 U.S.C. §284
as well as attorneys’ fees and costs under 35 U.S.C. §285.
80.

On information and belief, Defendants have at least had constructive notice of the ’175

Patent by operation of law.
COUNT 2:
INFRINGEMENT OF U.S. PATENT NO. 7,949,494
81.

Blue Spike incorporates by reference the allegations in paragraphs 1 through 80 of this

complaint.
82.

Blue Spike, LLC is assignee of the ’494 Patent, titled “Method and Device for

Monitoring and Analyzing Signals,” and has ownership of all substantial rights in the ’494
Patent, including the rights to grant sublicenses, to exclude others from using it, and to sue and
obtain damages and other relief for past and future acts of patent infringement.
83.

The ’494 Patent is valid, is enforceable, and was duly and legally issued on May 24,

2011. A true and correct copy of the ’494 Patent is attached as Exhibit B.
84.

Without a license or permission from Blue Spike, Defendants have infringed and

continue to infringe on one or more claims of the ’494 Patent—directly, contributorily, or by
inducement—by importing, making, using, offering for sale, or selling products and devices that
embody the patented invention, including, without limitation, one or more of the Accused
Products, in violation of 35 U.S.C. §271.
85.

Defendants have been and now are indirectly infringing by way of inducing infringement

by others and/or contributing to the infringement by others of the ’494 Patent in the State of

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Texas, in this judicial district, and elsewhere in the United States, by, among other things,
making, using, importing, offering for sale, and/or selling, without license or authority, products
for use in systems that fall within the scope of one or more claims of the ’494 Patent. Such
products include, without limitation, one or more of the Accused Products. Such products have
no substantial non-infringing uses and are for use in systems that infringe the ’494 Patent. By
making, using, importing offering for sale, and/or selling such products, Defendants injured Blue
Spike and are thus liable to Blue Spike for infringement of the ’494 Patent under 35 U.S.C. §271.
Those whom Defendants induce to infringe and/or to whose infringement Defendants contribute
are the end users of the Accused Products. Defendants had knowledge of the ’494 Patent at least
as early as the service of this complaint and are thus liable for infringement of one or more
claims of the ’494 Patent by actively inducing infringement and/or are liable as contributory
infringer of one or more claims of the ’494 Patent under 35 U.S.C. § 271.
86.

Defendants’ acts of infringement of the ’494 Patent have caused damage to Blue Spike,

and Blue Spike is entitled to recover from Defendants the damages sustained as a result of
Defendants’ wrongful acts in an amount subject to proof at trial pursuant to 35 U.S.C. §271.
Defendants’ infringement of Blue Spike’s exclusive rights under the ’494 Patent will continue to
damage Blue Spike, causing it irreparable harm, for which there is no adequate remedy at law,
warranting an injunction from the Court.
87.

On information and belief, Defendants have continued to infringe the ’494 Patent since

receiving notice of their infringement, at least by way of their receiving notice of this lawsuit. On
information and belief, such continued infringement has been objectively reckless because
Defendants have (1) acted despite an objectively high likelihood that their actions constituted
infringement of a valid patent and (2) knew or should have known of that objectively high risk.

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Accordingly, Blue Spike seeks a willfulness finding against Defendants relative to their
infringement of the ’494 Patent entitling Blue Spike to increased damages under 35 U.S.C. §284
as well as attorneys’ fees and costs under 35 U.S.C. §285.
88.

On information and belief, Defendants have at least had constructive notice of the ’494

Patent by operation of law.
COUNT 3:
INFRINGEMENT OF U.S. PATENT NO. 7,660,700
89.

Blue Spike incorporates by reference the allegations in paragraphs 1 through 88 of this

complaint.
90.

Blue Spike, LLC is assignee of the ’700 Patent, titled “Method and Device for

Monitoring and Analyzing Signals,” and has ownership of all substantial rights in the ’700
Patent, including the rights to grant sublicenses, to exclude others from using it, and to sue and
obtain damages and other relief for past and future acts of patent infringement.
91.

The ’700 Patent is valid, is enforceable, and was duly and legally issued on February 9,

2010. A true and correct copy of the ’700 Patent is attached as Exhibit C.
92.

Without a license or permission from Blue Spike, Defendants have infringed and

continue to infringe on one or more claims of the ’700 Patent—directly, contributorily, or by
inducement—by importing, making, using, offering for sale, or selling products and devices that
embody the patented invention, including, without limitation, one or more of the Accused
Products, in violation of 35 U.S.C. §271.
93.

Defendants have been and now are indirectly infringing by way of inducing infringement

by others and/or contributing to the infringement by others of the ’700 Patent in the State of
Texas, in this judicial district, and elsewhere in the United States, by, among other things,
making, using, importing, offering for sale, and/or selling, without license or authority, products

25

for use in systems that fall within the scope of one or more claims of the ’700 Patent. Such
products include, without limitation, one or more of the Accused Products. Such products have
no substantial non-infringing uses and are for use in systems that infringe the ’700 Patent. By
making, using, importing offering for sale, and/or selling such products, Defendants injured Blue
Spike and are thus liable to Blue Spike for infringement of the ’700 Patent under 35 U.S.C. §271.
Those whom Defendants induce to infringe and/or to whose infringement Defendants contribute
are the end users of the Accused Products. Defendants had knowledge of the ’700 Patent at least
as early as the service of this complaint and are thus liable for infringement of one or more
claims of the ’700 Patent by actively inducing infringement and/or are liable as contributory
infringer of one or more claims of the ’700 Patent under 35 U.S.C. § 271.
94.

Defendants’ acts of infringement of the ’700 Patent have caused damage to Blue Spike,

and Blue Spike is entitled to recover from Defendants the damages sustained as a result of
Defendants’ wrongful acts in an amount subject to proof at trial pursuant to 35 U.S.C. §271.
Defendants’ infringement of Blue Spike’s exclusive rights under the ’700 Patent will continue to
damage Blue Spike, causing it irreparable harm, for which there is no adequate remedy at law,
warranting an injunction from the Court.
95.

On information and belief, Defendants have continued to infringe the ’700 Patent since

receiving notice of their infringement, at least by way of their receiving notice of this lawsuit. On
information and belief, such continued infringement has been objectively reckless because
Defendants have (1) acted despite an objectively high likelihood that their actions constituted
infringement of a valid patent and (2) knew or should have known of that objectively high risk.
Accordingly, Blue Spike seeks a willfulness finding against Defendants relative to their

26

infringement of the ’700 Patent entitling Blue Spike to increased damages under 35 U.S.C. §284
as well as attorneys’ fees and costs under 35 U.S.C. §285.
96.

On information and belief, Defendants have at least had constructive notice of the ’700

Patent by operation of law.
COUNT 4:
INFRINGEMENT OF U.S. PATENT NO. 7,346,472
97.

Blue Spike incorporates by reference the allegations in paragraphs 1 through 96 of this

complaint.
98.

Blue Spike, LLC is assignee of the ’472 Patent, titled “Method and Device for

Monitoring and Analyzing Signals,” and has ownership of all substantial rights in the ’472
Patent, including the rights to grant sublicenses, to exclude others from using it, and to sue and
obtain damages and other relief for past and future acts of patent infringement.
99.

The ’472 Patent is valid, is enforceable, and was duly and legally issued on March 18,

2008. A true and correct copy of the ’472 Patent is attached as Exhibit D.
100.

Without a license or permission from Blue Spike, Defendants have infringed and

continue to infringe on one or more claims of the ’472 Patent—directly, contributorily, or by
inducement—by importing, making, using, offering for sale, or selling products and devices that
embody the patented invention, including, without limitation, one or more of the Accused
Products, in violation of 35 U.S.C. §271.
101.

Defendants have been and now are indirectly infringing by way of inducing infringement

by others and/or contributing to the infringement by others of the ’472 Patent in the State of
Texas, in this judicial district, and elsewhere in the United States, by, among other things,
making, using, importing, offering for sale, and/or selling, without license or authority, products
for use in systems that fall within the scope of one or more claims of the ’472 Patent. Such

27

products include, without limitation, one or more of the Accused Products. Such products have
no substantial non-infringing uses and are for use in systems that infringe the ’472 Patent. By
making, using, importing offering for sale, and/or selling such products, Defendants injured Blue
Spike and are thus liable to Blue Spike for infringement of the ’472 Patent under 35 U.S.C. §271.
Those whom Defendants induce to infringe and/or to whose infringement Defendants contribute
are the end users of the Accused Products. Defendants had knowledge of the ’472 Patent at least
as early as the service of this complaint and are thus liable for infringement of one or more
claims of the ’472 Patent by actively inducing infringement and/or are liable as contributory
infringer of one or more claims of the ’472 Patent under 35 U.S.C. § 271.
102.

Defendants’ acts of infringement of the ’472 Patent have caused damage to Blue Spike,

and Blue Spike is entitled to recover from Defendants the damages sustained as a result of
Defendants’ wrongful acts in an amount subject to proof at trial pursuant to 35 U.S.C. §271.
Defendants’ infringement of Blue Spike’s exclusive rights under the ’472 Patent will continue to
damage Blue Spike, causing it irreparable harm, for which there is no adequate remedy at law,
warranting an injunction from the Court.
103.

On information and belief, Defendants have continued to infringe the ’472 Patent since

receiving notice of their infringement, at least by way of their receiving notice of this lawsuit. On
information and belief, such continued infringement has been objectively reckless because
Defendants have (1) acted despite an objectively high likelihood that their actions constituted
infringement of a valid patent and (2) knew or should have known of that objectively high risk.
Accordingly, Blue Spike seeks a willfulness finding against Defendants relative to their
infringement of the ’472 Patent entitling Blue Spike to increased damages under 35 U.S.C. §284
as well as attorneys’ fees and costs under 35 U.S.C. §285.

28

104.

On information and belief, Defendants have at least had constructive notice of the ’472

Patent by operation of law.
REQUEST FOR RELIEF
Blue Spike incorporates each of the allegations in paragraphs 1 through 104 above and
respectfully asks the Court to:
(a)

enter a judgment that Defendants have directly infringed, contributorily infringed, and/or

induced infringement of one or more claims of each of the Patents-in-Suit;
(b)

enter a judgment awarding Blue Spike all damages adequate to compensate it for

Defendants’ infringement of, direct or contributory, or inducement to infringe, the Patents-inSuit, including all pre-judgment and post-judgment interest at the maximum rate permitted by
law;
(c)

enter a judgment awarding treble damages pursuant to 35 U.S.C. §284 for Defendants’

willful infringement of one or more of the Patents-in-Suit;
(d)

issue a preliminary injunction and thereafter a permanent injunction enjoining and

restraining Defendants, their directors, officers, agents, servants, employees, and those acting in
privity or in concert with them, and their subsidiaries, divisions, successors, and assigns, from
further acts of infringement, contributory infringement, or inducement of infringement of the
Patents-in-Suit;
(c)

enter a judgment requiring Defendants to pay the costs of this action, including all

disbursements, and attorneys’ fees as provided by 35 U.S.C. §285, together with prejudgment
interest; and
(d)

award Blue Spike all other relief that the Court may deem just and proper.

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DEMAND FOR JURY TRIAL
Blue Spike demands a jury trial on all issues that may be determined by a jury.
Respectfully submitted,

___________________________
Eric M. Albritton
Texas State Bar No. 00790215
[e-mail]
Stephen E. Edwards
Texas State Bar No. 00784008
[e-mail]
Michael A. Benefield
Texas State Bar No. 24073408
[e-mail]
ALBRITTON LAW FIRM
P.O. Box 2649
Longview, Texas 75606
Telephone: [phone]
Facsimile: [phone]
Randall T. Garteiser
Texas Bar No. 24038912
[e-mail]
Christopher A. Honea
Texas Bar No. 24059967
[e-mail]
Christopher S. Johns
Texas Bar No. 24044849
[e-mail]
GARTEISER HONEA, P.C.
44 North San Pedro Road
San Rafael, California 94903
Telephone: [phone]
Facsimile: [phone]
Counsel for Blue Spike, LLC

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