3registered for their multiple accounts at <RipoffReport.com> --
, before theymade thedefamatoryposts at issue. (
) Pursuant to their agreement with Xcentric, Defendants agreedthat:(a)Theyare “solely responsible for the content or information [they] publish ordisplay” on <RipoffReport.com>;(b)They “will NOT post on ROR anydefamatory, inaccurate, abusive, obscene,profane, offensive, threatening, harassing, racially offensive, or illegal material.”(c)They“warrant and represent that the information is truthful and accurate.”(d)Theywill “defend, indemnify, and hold harmless Xcentric, its officers, directors,employees, agents and third parties, for any losses, costs, liabilities and expenses(including reasonable attorney’s fees) relating to or arising out of your use of ROR, including, but not limited to, anybreach byyou of the terms of thisAgreement.”(e)Theyhave provided Xcentric “an irrevocable, perpetual, fully-paid, worldwide
license to use, copy, perform, displayand distribute [Defendants’ posts]and to prepare derivative works of, or incorporate into other works, [Defendants’posts] and to grant and authorize sublicenses of the foregoing.”(
(final emphasis added).) In consideration for Defendants’ promises, Xcentric promises that“material will not be removed even at your request.” (
)This legal agreement between Defendants and Xcentric is more than mere passivebehavior –it is a contractual relationship, wherein Xcentric makes the rather extraordinarypromise to never remove Defendants’ posts, in exchange for Defendants’ warrantyof accuracy,its agreement to indemnifyXcentric, and an
to Defendants’ copyright rights inthe posts that Defendants authored.
This is more than mere passive behavior on Xcentric’s part,and it is sufficient to establish active concert and participation in Defendants’ ongoing violationof the Court’s injunction.
Xcentric has asserted its copyright rights in users’ postings and obtained injunctions against use of those postingsby third parties.
Xcentric Ventures, LLC v. Stanley
, No. CV-07-954-PHX-GMS, 2009 WL 113563 (D. Ariz. Jan. 16,2009) (Ex. S).
Case 1:09-cv-03955 Document 31 Filed 11/13/2009 Page 3 of 12