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Case3:10-cv-00264-WHA Document37 Filed03/17/10 Page1 of 23

D. GILL SPERLEIN (172887)


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THE LAW OFFICE OF D. GILL SPERLEIN
2 584 Castro Street, Suite 879
San Francisco, California 94114
3 Telephone: (415) 404-6615
Facsimile: (415) 404-6616
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gill@sperleinlaw.com
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DOUGLAS L. BRIDGES (pro hac vice)
6 HENINGER GARRISON DAVIS LLC
7
1 Glenlake Parkway, Suite 700
Atlanta, Georgia 30328
8 Telephone: (678) 638-6309
Facsimile: (678) 638-6142
9 dbridges@hgdlawfirm.com
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BRIAN D. HANCOCK (pro hac vice)
11 HENINGER GARRISON DAVIS LLC
2224 1st Avenue North
12
Birmingham, AL 35203
13 Telephone: (205) 326-3336
Facsimile: (205) 326-3332
14 bdhancock@hgdlawfirm.com
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Attorneys for Plaintiff,
16 DANIEL M. MILLER

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18 UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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)
21 DANIEL M. MILLER, ) CASE NO.: CV-10-264 (WHA)
)
22
) FIRST AMENDED COMPLAINT
23 Plaintiff, )
)
24 vs. )
FACEBOOK, INC. and YAO WEI YEO, )
25
)
26 Defendants. )
)
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FIRST AMENDED COMPLAINT


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2 FIRST AMENDED COMPLAINT


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Plaintiff Daniel M. Miller (“Plaintiff”), for its First Amended Complaint
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5 against Defendants Facebook, Inc. (“Facebook”) and Yao Wei Yeo (“Yeo”,
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collectively with Facebook as “Defendants”), hereby demands a jury trial and
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alleges as follows:
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9 THE PARTIES
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1. Plaintiff Daniel M. Miller, is an individual residing 2079 Kinsmon
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12 Drive, Marietta, Georgia 30062.


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2. On information and belief, Defendant Facebook, Inc. is a corporation
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organized and existing under the laws of Delaware with its principal place of

16 business at 1601 S. California Avenue, Palo Alto, CA 94304.


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3. Upon information and belief, Defendant Yao is an individual with
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19 unknown address that was not ascertainable after reasonable diligence.


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JURISDICTION AND VENUE
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4. This action arises under the Laws of the United States, 17 U.S.C. § 1 et
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seq., including 17 U.S.. §§ 501 and 15 U.S.C. § 1 et seq. including 15 U.S.C. §§
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1125(a).
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26 5. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§


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1331, 1332(a)(1), 1367 and 1338(a).
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FIRST AMENDED COMPLAINT


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6. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1400(b)

2 and 28 U.S.C. § 1391(b) and (c).


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7. On information and belief, Defendant Facebook is subject to personal
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5 jurisdiction in this district by virtue of, among other things, doing business and
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committing acts of infringement in this State, including in this judicial district,
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8 through agents and representatives and/or otherwise having substantial contacts with
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this State and this judicial district.
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8. On information and belief Defendant Yeo is subject to personal
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12 jurisdiction in this district by virtue of, among other things, committing acts of
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infringement in this State, including in this judicial district.
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15 FACTUAL BACKGROUND
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9. In early 2007, Plaintiff authored the video game Boomshine.
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10. Boomshine is a game played on the Internet using Adobe Flash ™

19 technology where players click on a floating circle that causes the clicked circle to
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expand and causes other contacted floating circles to likewise expand in a chain
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22 reaction.
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11. Boomshine was published by Plaintiff on the Internet on the website
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25 K2xl.com starting on March 9, 2007.


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12. Plaintiff was duly and lawfully granted a copyright registration on

2 Boomshine by the United States Copyright Office with registration number


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TX0007089855.
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5 13. Defendant Yeo does business as Zwigglers Apps on the websites


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www.facebook.com/zwigglers and www.zwigglers.com.
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8 14. At least as early as April, 2009, Defendant Yeo published the game
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ChainRxn on a website hosted by Defendant Facebook.
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15. Defendant Facebook published ChainRxn in their Application
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12 Directory which allows every Facebook user to search and view the application
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from within the directory.
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15 16. Defendant Facebook took the affirmative step to approve ChainRxn for
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publication on its Application Directory.
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17. ChainRxn is a game played on the Internet using Adobe Flash™

19 technology where players click on a floating circle that causes the clicked circle to
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expand and causes other contacted floating circles to likewise expand in a chain
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22 reaction.
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18. ChainRxn copies the look and feel of Boomshine by incorporating
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25 almost every visual element of the game.


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19. After Defendant Yeo published ChainRxn on Defendant Facebook’s
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website, members of the public were deceived regarding the origin of ChainRxn.
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20. Defendant Facebook provides advertisements on the webpage that

2 hosts the ChainRxn game.


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21. On May 7, 2009, Plaintiff sent a letter to Defendant Facebook (attached
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5 hereto as Exhibit A) demanding that Facebook remove ChainRxn from its website
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because it violates Plaintiff’s copyrighted Boomshine.
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8 22. On May 7, 2009, Plaintiff sent a letter to Defendant Yeo (attached


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hereto as Exhibit B) demanding that Defendant Yeo remove ChainRxn from the
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Facebook website because ChainRxn violates Plaintiff’s copyrighted Boomshine.
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12 23. Upon information and belief, after Defendant Yeo received the letter
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from Plaintiff demanding that he remove ChainRxn from the Facebook website,
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15 Defendant Yeo modified ChainRxn to prevent Plaintiff or anyone listing Plaintiff as


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his “friend” on the Facebook website from accessing or viewing ChainRxn.
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24. Despite the demands by Plaintiff that Defendants remove ChainRxn

19 from the Facebook website, they have refused to do so.


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COUNT ONE
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22 Copyright Infringement of the by Defendants


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25. Plaintiff repeats and incorporate here in the entirety of the allegations
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25 contained in paragraphs 1 though 24 above.


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26. Without authorization, Defendant Facebook reproduced and distributed
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the program ChainRxn, which infringes the copyright of the following Plaintiff
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owned and copyrighted work by copying its look and feel: Boomshine, U.S.

2 Copyright Registration.
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27. Without authorization, Defendant Facebook induced and encouraged
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5 the infringement of the Boomshine work by refusing to remove ChainRxn from


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Facebook after being notified of its infringement of the copyright in Boomshine.
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8 28. Without authorization, Defendant Yeo reproduced and distributed the


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program ChainRxn, which infringes the copyright of the following Plaintiff owned
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and copyrighted work by copying its look and feel: Boomshine, U.S. Copyright
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12 Registration TX0007089855.
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29. Plaintiff did not authorize Defendants’ copying, display or distribution
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15 of infringing copies of his work.


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30. Defendants knew that ChainRxn infringed Plaintiff’s Boomshine
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copyright and that they did not have permission to exploit Plaintiff’s works.

19 31. Defendants knew that their acts constituted copyright infringement.


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32. Defendants’ conduct was willful within the meaning of the Copyright
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22 Act.
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33. As a result of their wrongful conduct, Defendants are liable to Plaintiff
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25 for copyright infringement pursuant to 17 U.S.C. § 501. Plaintiff has suffered, and
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will continue to suffer, substantial losses, including but not limited to damage to his
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business reputation and goodwill.
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FIRST AMENDED COMPLAINT


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34. Plaintiff is entitled to recover damages, which include his losses and

2 any and all profits Defendants have made as a result of their wrongful conduct.
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WHEREFORE, Plaintiff prays for a judgment against Defendants on all
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5 counts as follows:
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A. That this Court enter permanent injunctive relief enjoining and
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8 retraining Defendant Facebook, its officers, directors, employees,


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agents, licensees, servants, successors, and assigns, and any and all
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persons in active concert or participation with any of them, from the
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12 manufacture, publication, display, distribution, advertising of, sale, or


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offer for sale of ChainRxn and any other work which infringes
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15 Plaintiff’s copyrights in Boomshine;


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B. That this Court enter permanent injunctive relief enjoining and
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retraining Defendant Yeo, his agents, licensees, servants, successors,

19 and assigns, and any and all persons in active concert or participation
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with any of them, from the manufacture, publication, display,
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22 distribution, advertising of, sale, or offer for sale of ChainRxn and any
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other work which infringes Plaintiff’s copyrights in Boomshine;
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25 C. That this Court enter an order adjudging that Defendants have willful
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infringed upon Plaintiff’s copyrights in and to Boomshine;
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D. That this Court require Defendants to disgorge and to account to

2 Plaintiff for any and all profits derived by Defendants from the
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manufacture, production, publication, distribution, advertisement, sale,
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5 transfer or other exploitation of the game ChainRxn;


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E. That this Court award Plaintiff damages against Defendants in an
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8 amount to be determined at Trial;


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F. That this Court grants such other and further relief as it shall deem just
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and proper, including interest and the costs and disbursements of this
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12 action.
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PLAINTIFF DEMANDS A TRIAL BY JURY.
14

15 Dated: March 17, 2010


16 Respectfully submitted,
17

18 /s/ D. Gill Sperlein


19 D. GILL SPERLEIN
20
THE LAW OFFICE OF D. GILL SPERLEIN
584 Castro Street, Suite 879
21 San Francisco, CA 94114
Telephone: (415) 404-6615
22 Facsimile: (415) 404-6616
23
E-mail: gill@sperleinlaw.com

24 DOUGLAS L. BRIDGES (pro hac vice)


HENINGER GARRISON DAVIS LLC
25
1 Glenlake Parkway, Suite 700
26 Atlanta, Georgia 30328
Telephone: 678-638-6309
27 Facsimile: 678-638-6142
Email: dbridges@hgdlawfirm.com
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BRIAN D. HANCOCK (pro hac vice)


1
HENINGER GARRISON DAVIS LLC
2 2224 1st Avenue North
Birmingham, Alabama, 35203
3 Telephone: (205) 326-3336
Facsimile: (205) 326-3332
4

5 ATTORNEYS FOR PLAINTIFF

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