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United States District Court For The District Of

(Missoula)
Todd Damase Ouellette
Plaintiff
Complaint For Declaratory
V. And Injunctive Relief
And Damages
Viacom International Inc., Comedy Partners,
MTV Networks, BayTSP, Audible Magic, Myspace Inc.,
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News Corporation, Youtube, LLC, and Google Inc;.

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1. Comes now that Plaintiff Todd Damase Ouellette is forced to file this Pro Se
complaint under statute 28 U.S.C. § 1654, againSt Defendants Viacom, Comedy
Partners, MTVN, BayTSP, Audible Magic, NBC Universal, Myspace, NewsCoorp,
Google and Youtube. This is a civil action injunctive relief, declaratory relief and
damages for conspiracy to operate an illegal scanning softwares in a deliberate effort to
commit MISREPRESENTATION of copyright infrirgement under the Digital Millennium
Copyright Act ("DMCA") 17 U.S.C. 512 (F), and/or block videos without a valid copyright
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claim; refusal to process "substantially" valid and icompletely valid counter notices;
refusal to retract a fraudulent copyright claim; anq use of an inaccurate, confusing and
unconscionable contracts ("TOS" - see Exhibit #1 Youtube TOS and Exhibit #18
Myspace TOUA) which were subsequently violated by Defendants. Also, Defendants
violated Plaintiff's rights as a disabled American the American's With Disabilities
Act by using a font style in their contracts that is difficult for many Dyslexics to read and
refused to make a reasonable accommodation for Plaintiff's Dyslexia. Defendants also
exacerbated Plaintiff's Dyslexia and Chronic Pain! Syndrome by repeatedly threatening
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(Exhibit #2 Threatening Email) Plaintiff for no legitimate reason. (see 42 USC - 12181 ­
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SEC. 302. PROHIBITION OF DISCRIMINATION IBY PUBLIC ACCOMMODATIONS).
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2. This case arises out of Defendant's to concoct baseless assertions that
Plaintiff's videos posted to the GooglelYoutube "powmadeak47",
"somerealnews", "judgetvshow" and "EFFlsAFral.)d" infringe copyrights owned,
controlled or 'flagged' by the Defendants in violation of the Digital Millennium Copyright
Act's prohibition against MISREPRESENTATION!. These Defendants have all
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repeatedly verified that these assertions are but have nonetheless resulted in
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temporary and/or permanent removal of legal Fair Use videos from the four
GooglelYoutube accounts listed above; and threats to remove all videos from these
accounts; and police harassment against the Plaihtiff and his 70 yr. old mother who
suffers from high blood pressure and strokes. has clearly led to infliction severe
emotional distress stress upon the the Plaintiff. Dl.fendant's threats to Plaintiff have
repeatedly exacerbated his Dyslexia and ChroniO Pain Syndrome disabilities.
Notice Of Probable JSmendments
3. Due to the secretive policies of Defendants, Pltintiff wishes to infonn this court that
he will almost certainly need to amend this complaint, as details and facts emerge
during the process of this suit.
PARTY (PlaiJtiffl
4. Plaintiff Todd Damase Ouellette is an political activist, investigative
reporter and videographer, who resides primarily lin Missoula, MT but travels extensively
in the Western United States to obtain video footage used in his various productions.
Plaintiff lives in, and conducts most of his and prlduction, including most of the videos
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in question, from various locations in Missoula MT. Plaintiff is routinely subjected to
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various levels of harassment due to the unpopuh;lrity of his political views. (Exhibit #3
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Party Plaintiff and Exhibit #4 Timeline - Details ofl video production and harassment
history.)
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Parties - Defendants Viacom, MTV N,tworks & Comedy Partners
5. Defendant Viacom International Inc. is a Delaware corporation with its
principal place of business in New York, New Yolfl<.
Defendant Comedy Partners, an affiliate of Viacom, is a general partnership formed in
New York with its principal place of business in New York, New York. Defendant MTV
Networks apparently produces The Daily Show With John Stewart and The Colbert
Report. It was listed as a party to at least one fraYdulent copyright claim made against
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Plaintiffs video posted to Youtube. (see Exhibit #S BayTSP Copyright Claim)
6. The shows distributed through their licensed diStribution networks include "The Daily
Show with Jon Stewart" and "The Colbert Report!" According to Viacom's lawsuit
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against Youtube (Case 1 :07-cv-02103-LLS), Def$ndant Viacom International, Inc.
rViacom") is the corporate parent of Comedy Partners, which produces "The Colbert
Report" and "The Daily Show· and owns the Comedy Central cable network. Plaintiff is
informed and believes, and herein alleges, that V!acom owns or controls the copyrights
for "The Colbert Report" and "The Daily Show.·
7. Via com also operates a website http://www.th1dailYShow.com and

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website allows Viacom to derive revenue by displbying advertisements for other entities
and also via the sale of merchandise (books, shirts etc.),. This website also allows
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Missoula residents to set up a user account that allows residents of this district to
upload photos and videos. This user account a contract (TOS). Defendant
Viacom is internationally famous for it's abuse of DMCA take-down process (Exhibit
#8 Yahoo Search for "Viacom Take- Down, also see Exhibit Addresses).
Party -!)efendant BayTSP
8. Plaintive has information and reason to believe the following: Defendant BayTSP is a
privately held company based in Los Gatos, CalifOrnia, that searches the internet for
copyright violations. It is contracted by Defendant Viacom (and probably NBC Universal)
to scour the internet for copyrighted content produced by Viacom that is illegally
uploaded without Viacom's permission ( see Exhibit "BayTsp Copyright Claim" - sent to
me by Youtube's copyright team after I complainE!Cl about . It is very secretive.
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but must use loeallnfrastructure to provided it's service. This infrastructure includes
cable and fiber-optic lines, satellites and cellular Defendant BayTSP operates
a website (www.baytsp.com}which solicits from copyright owners and is
available to any resident of this district. BayTSP makes false claims that it's system
protects "fair use" videos. A complaint against BAYTSP's fraudulent copyright claims
can be found at http://heliologue.coml2007/02lpage/3. (also see Exhibit #9 BayTSP
Copyright Claim).
Party - Defendant Audible Magic Corporation
9. Plaintive has information and reason to believe the following: Defendant Audible
Magic is a corporation based in Los Gatos, California, that searches the internet for
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copyright violations. It is contracted by Defendanb; Viacom and NBC Universal to scour
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the internet for copyrighted content produced by '(iacom and NBC Universal that is
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illegally uploaded without permission (see E x h i b i ~ #22 Myspace Admission - email
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detailing "filter block"). Defendant Audible Magic must use local infrastructure to
provided it's service. This infrastructure includes table and fiber-optic lines, satellites
and cellular systems. Defendant operates a webSite (http://www.audiblemagic.com)
which solicits business from copyright owners and is available to any resident of this
district. Defendant was involved in writing Defenclant Youtube's first content scanning
software.
Party - Defendant tMyspace
10. Plaintiff has reason to believe and allege the following; Defendant Myspace is a
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social networking website headquartered in Beverly Hills, CA. where it shares an office
building with its immediate owner, News Corp. Dipital Media, owned by News
Corporation. Myspace became the most popular !;ocial networking site in the United
States in June 2006, but was overtaken internationally by its main competitor,
Facebook, in April 2008. MySpace's monthly U.SI unique visitors at 43.2 million. The
100 millionth account was created on August 9, .zb06, in the Netherlands. "Members"
get their 'accounts' by agreeing to a Terms Of US!3 Agreement (see Exhibit #18
Myspace TOUA). This contract contains block letter font. Numerous Missoulians have
signed this contract and maintain accounts thru Which they upload audio, video and/or
photographs to their account. This social networking service requires use of local
infrastructure including cellular transmission, cable, satellite, and computer systems.
Myspace derives financial gain from posting advartisements that are seen daily my
many Missoulians. Defendant Myspace also overjs Missoulians an advertisement
service to promote local products.
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While Missoulians can upload
videos to Myspace.com accounts, Myspace.com 'S not considered to be a legitimate
alternative to Youtube.com video uploading, due to the lack of traffic (views) on the
Myspace videos.
NewsCorp/Myspace also operates a Chinese language version called
www.myspace.cn.This site uses "filters" to cenSOr topics such as religion and politics
and prevents the posting of content about Taiwan independence, the Dalai Lama, Falun
Gong, and other "inappropriate topics· has been added. Members are also given the
ability to report the "misconduct" of other members for alleged offenses including
"endangering national security, leaking state subverting the government,
undermining national unity, and spreading rumorS or disturbing the social order."
Party - Defendant NBC Universal
11. Plaintiff has reason to believe and allege the following; Defendant NBC Universal is
80% owned by General Electric and 20% owned by Vivendi. Universal is the corporate
parent of NBC Universal and NBC UNIVERSAL TELEVISION GROUP, which produces
Saturday Night Live. Plaintiff is informed and beli,ves, and thereon alleges, that NBC
Universal owns or controls the copyrights to Saturday Night Live, and Saturday Night
Live's "Weekend Update." "Saturday Night Live," Which premiered Oct. 11, 1975, is
broadcast live from NBC's famed Studio 8H in New York City's Rockefeller Center. The
program is a production of Broadway Video in as$ociation with SNL Studios. Lome
Michaels is the executive producer.
12. "http://www.nbcuni.comlAboul_NBC _ Overview· states "The
NBC Television Network broadcasts approximately 5,000 hours of TV programming
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each year, transmitting to more than 200 affiliatecll stations across the United States."
One of the affiliates is KECI in Missoula, MT. derives advertising revenue by
using the local cable and satellite systems to airel advertisements seen by residents of
this judicial district. Universal also operates a
http://www.nbc.com/saturday-night-live/that is accessible by any resident of this
district. This website derives advertising revenue by displaying advertisements for it's
sponsors and via direct merchandise sales. This website also offers a
"computer-to-computer voice-calling application" and and a user account that allows
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residents of this district to upload photos and videos. Both of these applications require
users to agree to a TOS contract. This website eJ!:tols viewers to "Shop the NBC Store
for DVDs, collectibles, and more from your favori1je NBC shows!"
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Party· Defendant GoqgleNoutube
13. Defendant YouTube, LLC is a Delaware limited liability company with its principal
place of business in San Bruno, California. On information and belief, YouTube, LLC is
the successor of YouTube, Inc. Youtube's "Copyright Team" lists it's address as
YouTube, Inc. - 901 Cherry Ave. - Second Floor San Bruno, CA 94066. Defendant
YouTube, Inc. is the world's preeminent video sharing service. Youtube.com is
indispensable to any person trying to publicize pdlitical issues. Users include President
Barack Obama, al-Qaeda terrorists, and freedomlfighters opposed to oppressive
regimes in China, Tajikistan, Myanmar and numerous other countries and regions.
Other services like Myspace, Vimeo and FaceboC)k, do not even begin to compare to
Youtube in terms of viewership and ease of use. i
14. YouTube is a wholly owned and controlled subsidiary of Defendant Google Inc., a
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Delaware corporation with its principal offices of ijusiness in Mountain View, Califomia,
and the State of New York. Youtube also conducts business in this District. Pursuant to
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a transaction that was publicly announced on Ocllober 9, 2006, and closed on
November 13, 2006, Google acquired YouTube for $1.65 billion. Therefore YouTube,
Inc. and YouTube, LLC are referred to collectively herein as
"Google/YouTube." Google/Youtube requires aliinew account submissions to also set
up a Google account. The Google account pass",,!ord is used as the password for the
Youtube account. Google/Youtube offers adverti1ing programs to "Youtubers" (IE
people who open Youtube accounts and post vidElOs on their accounts); see
http://www.youtube.comltladvertising. These programs are available to any Missoulian
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wI access to the internet. These programs allow rjtlissoula-based Youtubers to pay
Google/Youtube to advertise their websites and t)usinesses, or derive revenue from
Google/Youtube in return for allowing ads to be posted along wI the
videos that the Youtubers submit; see http://wwwiyoutube.com/partners. In addition to
these local business ties, Google also developed Ithe software used on the "DROID"
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smart phone that is sold by several businesses. Youtube itself operates
a similar program that allows Missoulians to place Google/Youtube ads on videos that
they upload to their Youtube.com account.
15. Google/Youtube is a multi-billion dollar corpor1ption which requires account holders
to acquiesce to an confusing TOS, in order to upload videos to the internet. These TOS,
have the affect of voiding various federal statuteslincluding the DMCA, American's with
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Disabilities Act. and other state and federal anti-discrimination laws. These TOS also
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give Youtube.com the power to destroy all of the youtuber's videos for no reason, and
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with no right to appeal the destruction of the You1uber's property.
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JURISDICTION D VENUE
16. This Court has jurisdiction over this claim pursuant to the Copyright Act (17 U.S.C.
§§ 101 et seq.), 28 U.S.C. §§ 1331 and 1338, and the Declaratory Judgment Act (28
U.S.C. § 2291). Additionally, Defendant GoogleNoutube has voided the TOS contract,
by willfully violating "1. Your Acceptance - B. Nolhing in these Terms of Service shall
be deemed to confer any third-party rights or thereby invalidating any
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agreement allegedly made by Plaintiff with regarcjs to venue and jurisdiction (Exhibit #1
TOS) . And that NewsCorp/Myspace has voided it's TOUA by allowing Audible Magic to
inflict a"filter block" that is not specifically in it's TOUA.
17. Plaintiff is informed, believes and hereby al11es that Defendants have sufficient
contacts with this district generally and, in particular, with the events herein alleged, that
it is subject to the exercise of jurisdiction of this and that venue is proper in this
judicial district pursuant to 28 U.S.C. § 1391. Plaihtiff has obtained, edited and uploaded
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most of the videos in question from Missoula Montana.
18. Plaintiff is informed, believes and hereby all1es that, based on the places of
businesses of the Plaintiffs and Defendants, factual allegations herein and/or on
the national and global reach of Defendants, a sUbstantial part of the events giving rise
to the claims herein alleged occurred in this district and that agents (law firms including
Whitney & Dorsey LLP) of Defendants may be found in this district. Plaintiff believes
Defendants have the financial resources to hire r4lpresentation in this district and that
they obtain financial gain from airing their programs and or videos and the sale of
merchandise in this district on a daily basis.
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INTRADISTRICT ASjSIGNMENT
19.Plaintiff is informed, believes and herein altegts that a substantial part of the events
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that give rise to the claims herein occurred in thelCounty of Missoula, Montana and that
all Defendants rely on local infrastructure (cable, pellular, satellite, fibre optic, affiliates,
etc.) to procreate their bUsiness interests. And, Plaintiff has direct ties to this district,
and it is in the interest of justice for this suit to be heard in this jurisdiction.
FACTUAL ALLE4ATIONS
20. Plaintiff has information and belief that Defendant Youtube LLC. requires users to
agree to a Terms Of Service contract. This TOS included significant errors, and as
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written would allow Y outube to engage in arbitrarY enforcement of it's rules and/or
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discriminatory acts in violation of numerous state and federals laws (including the
Americans with Disabilities Act). This TOS contai[1s 'bold-face type' that is difficult for
many Dyslexics to read. TOS also contains a prOVision that discriminates against
Americans with reading disabilities. Defendant Yqutube also violated this TOS by
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allowing "3rd Party· use of it's scanning software to initiate false copyright claims
against Plaintiff, resulting in blocking of his fair u ~ videos, "strikes" against his
accounts and termination of a Youtube account. ( ~ e e Exhibit #1 Youtube TOS and
Exhibit #4 Timeline)
21. Plaintiff has information and belief that Defendants BayTSP, Youtube, and Audible
Magic have developed various types of 'scanning software' to scan the intemet for
copyright audio and video files, and trigger the coPyright claim process. These software
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have no regard for legal, fair use videos and routihely lead to perjury when false
copyright claims are initiated against fair use videbs uploaded by Plaintiff and other
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"Youtubers" (See Exhibit #13 Oct. 10.2010 Youtube flag and UMG Recordings, 665 F.
Supp. 2d at 1116-18 - "automated Audible Magiclfilter "does not meet the standard of
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reliability and verifiability required by the Ninth Circuit in order to justify terminating a
user's account.")
23. Plaintiff has information and belief that Defen!Jant's know that their scanning
software initiate false copyright claims against Plaintiff, and made no effort to correct the
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problem. Plaintiff has information and belief that lDefendant's Viacom and NBC
Universal maliciously and intentionally did commit perjury by making false copyright
claims against Plaintiffs videos. And, that these acts of perjury were initiated by
Defendant's scanning software. Viacom's perjury!was committed by Stanley
Pierre-Lewis and Mark Ishikawa (see Exhibit #7 Stan Lewis P e ~ u r y - a Viacom email
admitting Stan Lewis' role and Exhibit #9 BayTSR Copyright Claim - email sent by
Youtube to Plaintiff verifying that Mark Ishikawa made a false copyright claim).
24. Plaintiff has information and belief that Defendant Viacom did violate terms of it's
settlement wI EFF.org regarding establishment of a copyright "help" site sight to quickly
resolve fraudulent copyright claims initiated against fair use videos by Viacom. Plaintiff
has information and belief that Defendant Youtube's Copyright Team did arbitrarily
enforce it's TOS rules regarding submission of copyright counter notices to the
detriment of Plaintiff, thus violating DMCA requirements that counter notices be
processed in order for Youtube to claim "safe harbor" status. Plaintiff contents that
attorneys for Youtube did commit perjury during t ~ e final stages of it's successful
defense against the Viacom lawsuit. Youtube's c6pyright team repeatedly refused to
process "substantially" complete and totally complete counter notices submitted by
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Plaintiff. (see Exhibit #5 False statement by Yolltube attomeys and Exhibit #7 Safe
Harbor Perjury).
25. Plaintiff has information and belief that Defenjjant Youtube's Copyright Team did
maliciously use his obvious reading disability as ,n excuse to refuse to process a
"substantially" complete DMCA count notice (seei Exhibits #10 'Newt' Video Ordeal, #11
Stewart Disses Israel - A Little {flag notice}, #121 Dyslexia Mess, #13 and Exhibits #14,
#15, #16, #17 regarding flag, take-down and refusal to process counter notice for 'Salt'
video) and deliberately and maliciously used fraudulent copyright claims from
Defendants Viacom, NBC Universal and to threaten Plaintiff and inflict severe
emotional distress upon him (see Exhibit #2 Thret3tening Email) and harassment of his
mother by law enforcement officers based on claims by Fred Von Lohman (See
Exhibit #23 Helu Admits To Harassing My
26. Plaintiff has information and belief that Defen(lants Viacom, NBC Universal,
BayTSP, Audible Magic, NewsCorp/Myspace and Youtube threatened Plaintiff, thus
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exacerbating his medical disability which induced[ severe physical pain upon him and
forced him under duress to agree to Youtube's T¢>S for all accounts (other than
"powmadeak47") and the account. Defendant Viacom
also repeatedly harassed Plaintiff by issuing multiple, fraudulent copyright claims
against a single video in an effort to induce Youtube to permanently block it and issue
Plaintiff "strikes" against his account (see Exhibits #6 Safe Harbor Perjury, #10 'Newt'
Video Ordeal, #24 Another Double Block)
27. Plaintiff has information and belief that NewsCorp/Myspace forces
members to sign a TOUA contract and that this TOUA is poorly written, confusing, uses
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block lettering that is difficult for Plaintiff to read, and has no provisions relating to Fair
Use rights and counter notice procedures. also alleges that Defendant
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Newscorp/Myspace did violate it's own TOUA bylblocking his videos without the proper
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notice from Audible Magic and NBC Universal asl required by the TOUA. (Exhibit #18
Myspace TOUA specifically "9. Protecting Copyrights and Other Intellectual Property"
and Exhibits #19,20,21, and 22 regarding "filter blocks"). Plaintiff also contends that
this action was a violation of the DMCA requirements for copyright claims, take-downs
and blocks and Limitations Of Liability.
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Count I· Youtube Violation Of Uncons,ionable Contract Of Adhesion
28. Plaintiff incorporates by reference of the aboJe paragraphs and exhibits, herein.
29. Defendant Google/Youtube uses a poorly written "Terms Of Service" contract. This
TOS is confusing, and also contradicts copyright "Help" instructions and
DMCA's counter notice requirements by falsely an issuer of a counter notice
must contain "all the following information" when the DMCA only requires the counter
notice to contain "substantially all" of the information. The Youtube.com TOS also
falsely claims that the counter notice must "a statement that you consent to the
jurisdiction of the federal court in San Francisco, balifornia." In fact, the DMCA requires
that the counter notice issuer "consents to the jurisdiction of Federal District Court for
the judicial district in which the address is located[" ("Address" refers to the counter
notice issuer's address.)
Youtube's TOS also falsely claims "If a is received by the Copyright
Agent. YouTube may send a copy of the counter-hotice to the original complaining party
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informing that person that it may replace the remOved Content or cease disabling it in
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10 business days. Unless the copyright owner files an action seeking a court order
against the Content provider, member or user, tha removed Content may be replaced,
or access to it restored, in 10 to 14 business daY$ or more after receipt of the
counter-notice, at YouTube's sole discretion." of the term "may" is incorrect.
GoogleNoutube base it's ·safe harbor" claims in previous litigation on the claim that it
"does" process counter notices and re-post videOIS that it blocked due to copyright
claims.
30. Plaintiff has reason to believe that DefendantlGoogleNoutube also violated this
TOS by entering into a secret agreement to become "partners" and use the Content 10
System and/or other scanning softwares to flag videos. The TOS specifically states, "B.
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Your Acceptance - 2. Nothing in these Terms of Service shall be deemed to confer any
third-party rights or benefits", thereby invalidating any agreement allegedly made by
Plaintiff with regards to venue and jurisdiction.
31. Upon information and belief, Defendant GoogleNouTube knew that it was legally
bound to process Plaintiffs counter notices and re-post his blocked videos as part of
their "safe-harbor" claim, regardless of any TOS Plaintiff allegedly "agreed" to, due to
it's claim as a "safe Harbor.·
32. As a direct and proximate result of Defendant!s actions. Plaintiff has been injured
substantially and irreparably. Such injuries but are not limited to harm to
Plaintiffs free speech rights under the First ment. and the expenses associated
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with responding to Viacom and Universal's and vindicating his free speech
rights, financial loss from destruction of Plaintiffs Independent news service blog, and
severe emotional distress.
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33. Plaintiff requests that this court make a declaltatory judgement that Defendant
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Google/Youtube's TOS violates the ADA. is wI the DMCA, violates
Defendant's previous "Safe Harbor" contentions, ras in fact violated by Defendants:
and that Plaintiff agreed to the TOS for all his accounts (except
POWMadeak47) under duress and are therefore unconscionable contracts of adhesion
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and void.
34. Plaintiff requests that this court issue a prelim,nary injunction barring Defendant
Google/YouTube from amending it's TOS; : and the use of block letter font: and
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barring it's use of Audible Magic, Content ID Systbms, BayTSP software, and
implementation of "filter blocks". Plaintiff request Ii permanent injunction requiring
Defendant Google/Youtube to amend it's TOS to give instructions on filing a DMCA
counter-notice consistent wI the DMCA ("substantially"); offer users an
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audible version of the TOS, and cease use of AwjJible Magic, BayTSP and any other
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scanning software until Defendants can prove that they will not block Fair Use videos;
and rescind all "strikes" against Plaintiff (and any ,other Youtuber") that have previously
been based on scanning software.
Count II - Myspace Violation Of Unconspionable Contract Of Adhesion
35. Plaintiff incorporates by reference of the abot paragraphs and exhibits, herein.
36. Defendant Myspace and Audible Magic uses poorly written 'Terms Of Use
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Agreement" contract. This TOUA is confusing, CQI1tradicts itself and has no instructions
for filing of DMCA counter-notices.
This TOUA is overly complicated, poorly written, uses block letter font that is nearly
imoo,,;bIe 10, 10 read. PIa",ff only '''1".TOUA ,nde, d,,,,,. of ..pealed
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threats initiated by false copyright claims from D1fendant NBC Universal and possible
Audible Magic. (Exhibit #18 Myspace TOUA) I
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Defendant Myspace implies in this TOUS that a claim must be initiated via
DMCA rules to implement a take-down of a dispJted video. However, Myspace allows
"filer blocks" which are not even mentioned in to rOUA. These "filter blocks" violate the
DMCA requirements regarding "safe harbor" of liability.
37. Upon information and belief, Defendants Mytpace and Audible Magic knew that
their "filter" was leading to blocks against Fair videos that Plaintiff had a legal right
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to post.
38. As a direct and proximate result of Defendan1!'s actions, Plaintiff has been injured
substantially and irreparably. Such injuries but are not limited to harm to
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Plaintiff's free speech rights under the First Ameridment, and the expenses associated
with responding to "filer blocks" and vindicating free speech rights, financial loss
from destruction of Plaintiff's independent news service blog, and severe emotional
distress.
39. Plaintiff requests that this court make a judgement that Defendant
NewsCorp/Myspacel TOUA is confusing and contradictory, violates the ADA, is
inconsistent wI the DMCA, and was in fact violateld by Defendant Myspace when it used
a "filter block", and is therefore an unconscionabl$ contract of adhesion and void.
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40. Plaintiff requests that this court issue a temporary restraining order barring
Defendant NewsCorp/Myspace from amending TOUA unless authorized by this
court; and barring it's use of Audible Magic software: and implementation of "filter
blocks": and bar the use of block letter font. request a permanent injunction
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requiring Defendant Myspace to amend it's TouA to give instructions on filing a DMCA
counter-notice: offer members an audible version of the TOUA, and cease use of
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Audible Magic, BayTSP and any other scanning software until Defendants can prove
that they will not block Fair Use videos.
Count III - Illegal Scanning Software's Misrepresentation
41. Plaintiff incorporates by reference of the above paragraphs and exhibits, herein.
Upon Plaintiffs information and belief, Defendantls Viacom, Universal, Myspace and
YouTube knew or should have known that the Content ID System, Claim Your
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Content System, Audible Magic and BayTSP softiware, targets Fair Use videos and
results in Misrepresentation in violation of 17 U.SfC. § 512(f), "strikes", and blocking of
videos without going thru the proper DMCA copyright claims process, (see Exhibit
"Myspace Admission").
Defendants have refused Plaintiffs repeated to fix these ID Systems so they
do not result in Misrepresentation. Instead of fixil19 their flawed and illegal systems,
Defendants maliciously refused to restore Plaintift's Fair Use videos which had been
blocked for no legitimate reason.
42. As a direct and proximate result of Defendant's actions, Plaintiff has been injured
substantially and irreparably. Such injuries but are not limited to harm to
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Plaintiffs free speech rights under the First Amerjdment, and the expenses associated
with responding to Viacom and Universal's complaints and vindicating their free speech
rights, financial loss from destruction of Plaintiffs lindependent news service blog and
public access TV program, and severe emotionalidistress .
43. Plaintiff requests that this court issue a tempqrary restraining order barring Viacom,
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Universal, Myspace and YouTube using any of scanning software until such time
that Defendants can prove these scanning softwares will not result in Misrepresentation
in violation of 17 U.S.C. § 512(f), "strikes", blocks or any other suppression offair use
videos works. Upon successful completion of this suit, Plaintiff requests a permanent
injunction to this affect.
COUNT IV: 17 U.S.C. 512(F)! Misrepresentation
44. Plaintiff repeats and incorporates herein by the allegations in the
preceding paragraphs and exhibits of this Compl$int.
Upon information and belief, a/l videos posted to Plaintiffs Youtube accounts
"powmadeak47", "somerealnews", "judgetvshow'1 and "EFFlsAFraud" and Plaintiffs
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Myspace.comlpowmadeak47 account are self-evident fair use and therefore
non-infringing under 17 U.S.C. § 107.
45. Upon information and belief, Viacom, Universbl, Myspace and GooglelYouTube,
Audible Magic and BayTSP knew or should have known that Plaintiffs videos on the
above named Youtube and Myspace accounts dif not infringe any copyright on the
dates that they were flagged by scanning softwarr and/or the dates that Viacom and
Universal sent DMCA take-down notices to G009!elYOUTube.
Accordingly, Plaintiff requests a declaratory that Defendants Mark Ishikawa,
Stan Louis and Universal did deliberately and maliciously violate 17 U.S.C. § 512(f) and
committed acts of perjury by knowingly materially misrepresenting that Plaintiffs videos
infringed copyrights and making false statements ito Judge Lewis Stanton (see Exhibits
# 5, Exhibit #fl, Exhibit #7 and Exhibit #9)
46. As a direct and proximate result of Defendantls actions, Plaintiff has been injured
Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 18 of 26
substantially and irreparably. Such injuries but are not limited to harm to
Plaintiff's free speech rights under the First Ame1dment, and the expenses associated
with responding to Viacom and Universal's complaints and vindicating their free speech
rights, financial loss from destruction of Plaintiff'siindependent news service and music
blog, public access TV programs; and severe errbtional distress.
47. Plaintiff requests that this court issue a restrajning order barring "partners" Viacom,
Universal, Myspace and GoogleNouTube issuing any future take-down notices against
Plaintiff's videos and blocking Plaintiff videos based on Defendants baseless copyright
misrepresentations. Upon successful completion of this suit, Plaintiff requests a
permanent injunction to this affect.
48. Plaintiff requests a temporary injunction, barrrg Defendants from producing and/or
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airing The Daily Show with John Stewart, The Co/bert Report and SNL Weekend
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Update.
Plaintiff requests revocation of Defendant Google¥Youtube's "Safe Harbor" status due to
it's perjured claims during the Viacom V. YoutubEj lawsuit. (See Exhibit #6 Safe Harbor
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Perjury - Excerpt from March 11, 2010 Youtube ct>urt filing in which GoogleNoutube
attorneys make false claims of DMCA compliance.)
COUNT V - REFUSAL TO PROCESS "SUBSTANTIALLY" COMPLETE DMCA
COUNTER NOl"ICES
49. Plaintiff incorporates by reference of the abo\h3 paragraphs and exhibits, herein.
Due to Plaintiff's financial situation and reading dibability, Plaintiff will never be able to
,
submit a perfect DMCA Counter Notice. Plaintiff not even own a phone and has no
fixed address. However, all counter notices were at least "substantially" complete.
Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 19 of 26
GooglelYoutube's copyright team clearly had enough information from Plaintiff to submit
Plaintiff's DMCA counter notice to Defendant's Viacom and Universal.
50. However, Defendant GooglelYoutube clearly !used Plaintiffs disability, phone and
address issues as an excuse to refuse to process ·substantially" complete DMCA
counter notices. GooglelYoutube's copyright knowingly refused repeated requests
by Plaintiff to explain the reason refusing to process "substantially complete" DMCA
counter notices. On the few occasions when the wpyright team did offer an excuse,
they were vague and misleading excuses that produced great mental stress in the
Plaintiff. The 3 Counter Notices that have been refused by Google'Youtube's copyright
team are the same template that this copyright teem has accepted on numerous
previous occasions.
51. As a direct and proximate result of Defendantfs actions, Plaintiff has been injured
substantially and irreparably. Such injuries but are not limited to harm to
Plaintiffs free speech rights under the First Amendment, and the expenses associated
with responding to GooglelYoutube's copyright and vindicating his free speech
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rights, financial loss from destruction of Plaintiffs: independent news service blog, and
severe emotional distress.
52. Plaintiff requests a declaratory judgement from this court that under the
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circumstances of repeated counter claims (most Gf which were totally complete)
Youtube's copyright team have enough informatidn to process Plaintiffs counter notices
that contained typos and omitted a phone number: and that Youtube Google should
have know that Plaintiff obviously have a readinIJ disability.
53. Plaintiff requests that this court issue a permanent injunction to the GooglelYoutube
Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 20 of 26
copyright team requiring it to clearly, completely and immediately explain any reason for
refusing to process any DMCA counter-notice thJt they receive from any Youtube
producers: and that in the event of a dispute the completeness of a counter
notice, Youtube process the counter notice and IfIlt the source of the copyright claim
dispute any error or misrepresentation in court.
COUNT VI- REFUSAL TO PROCESS tOTALLY COMPLETE DMCA
COUNTER NOTICES
54. Plaintiff incorporates by reference of the above paragraphs and exhibits, herein.
55. On September 1st, 2010 Plaintiff re-sent all 31disputed counter notices to the
Youtube copyright team in a final effort to resolvE1 this ridiculous mess. On this occasion,
Plaintiff used his work phone # (which his boss does not appreciate) and a PO Box
address in Missoula. These 3 counter notices totally complete and satisfy ever
parameter of the DMCA's suggested information for a valid Counter Notice. Not
surprisingly, Plaintiff has not been informed by Yqutube that the Counter Notice has
been processed.
56. Defendants' conduct constitutes direct of Plaintiffs' exclusive rights
under the Copyright Act to publicly display Plaintiffs Fair Use audiovisual works.
Defendants' acts of infringement have been willful, intentional, and purposeful, in
disregard of and indifferent to the rights of Plainti1if.
57. As a direct and proximate result of Defendants' infringement of Plaintiffs' Fair Use
rights and exclusive rights under U.S.C. 17, Plaintiff is entitled to the maximum statutory
damages pursuant to 17 U.S.C. § 504(c). Alternatively, at Plaintiffs' election, pursuant to
17 U.S.C. § 504(b), Plaintiff shall be entitled to their damages plus Defendants' profits
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Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 21 of 26
from infringement. as will be proven at trial.
58. Plaintiff is entitled to his costs, including attomeys' fees, pursuant to 17
U.S.C. § 505.
59. Defendants' conduct is causing and, unless enjoined by this Court, will continue to
cause Plaintiff great and irreparable injury that cannot fully be compensated or
measured in money. Plaintiffs have no adequate remedy at law. Pursuant to 17 U.S.C.
§ 502, Plaintiffs are entitled to a permanent injun4tion requiring Defendants to employ
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reasonable methodologies to prevent or limit of Plaintiffs' FAIR USE rights.
60. Plaintiff requests that this court issue an imme(!iate injuction requiring Youtube to
restore all of Plaintiff's videos that it currently has blocked. Plaintiff also requests that
this court issue an immediate injunction barring D.efendant Youtube from using it's
current Copyright Identification System.
COUNT VII- REFUSAL TO RETRACT A KNOWINGLY FRAUDULENT DMCA
COPYRIGHT
61. Plaintiff incorporates by reference of the paragraphs and exhibits, herein.
62. Beginning in early 2007, Defendants did use scanning software to issue false
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copyright claims against Plaintiff's videos
Beginning in late 2009 Plaintiff decided to go arOl,lnd the Google/Youtube copyright
team and send his Counter Notices directly to Vic:\com attorney Stanley Pierre-Lewis.
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Instead of immediately retracting the fraudulent c¢lpyright claim as Viacom had
promised to do under the EFF 'settlement', Mr. Lewis refused to accept the Counter
Notice under the alleged 'rule' that Viacom can ol)ly accept a Counter Notice sent thru
the Google/Youtube copyright team.
Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 22 of 26
,
63. Also, Plaintiff has sent enough counter noticelS that all Defendants clearly know that
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every video posted by Plaintiff is a Fair Use vided.
BayTSP, Audible Magic and the rest of Defendants refuse to retract their blatantly
fraudulent copyright claims.
64. Defendants' conduct constitutes direct of Plaintiffs' exclusive rights
under the Copyright Act to publicly display Plaintiffs Fair Use aUdiovisual works.
Defendants' acts of infringement have been willfljl, intentional, and purposeful, in
disregard of and indifferent to the rights of Plainti(f. (see Exhibit #23 Helu Admits To
Harassing My Mother).
65. As a direct and proximate result of Defendanls' infringement of Plaintiffs' Fair Use
rights and exclusive rights under USC 17, Plaintiff is entitled to the maximum statutory
damages pursuant to 17 U.S.C. § 504(c). Alternatively, at Plaintiffs' election, pursuant to
17 U.S.C. § 504(b), Plaintiff shall be entitled to their damages plus Defendants' profits
from infringement, as will be proven at trial.
Plaintiff is entitled to his costs, including reasonable attorneys' fees, pursuant to 17
U.S.C. § 505.
66. Defendant's conduct is causing and, unless enjoined by this Court, will continue to
cause Plaintiffs great and irreparable injury that cannot fully be compensated or
measured in money. Plaintiff has no adequate remedy at law. Pursuant to 17 U.S.C. §
,
502, Plaintiffs are entitled to a permanent injunction requiring Defendants to employ
reasonable methodologies to prevent or limit infringement of Plaintiffs' Fair Use rights.
67. Plaintiff requests that this court issue an immediate injunction requiring Defendant's
to immediately retract all Copyright claims against Plaintiffs videos posted to Plaintiffs
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Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 23 of 26
GoogleNoutube and Myspace accounts. And, Plaintiff also requests that this court
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issue an immediate injunction barring Defendant r,tiacom from issuing Copyright
take-down notices against Plaintiffs videos.
COUNT VIII - Perjury During Viacott. Vs. GoogleNolltube Suit
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68. Plaintiff incorporates by reference of the above paragraphs and exhibits, herein.
69. Plaintiff requests a declaratory judgement stating that GoogleNoutube attomeys did
in fact commit perjury during the suit initiated by Viacom.
Plaintiff requests that this court revoke GoogleNQutube's "Safe Harbor" status which is
based upon that and that all attorneys involved in that be cited for
contempt of court and jailed for not less than 100 days.
DECLARATORY RELIEF OF PION-INFRINGEMENT
70. Plaintiff repeats and incorporate herein by refrrence the allegations in the preceding
paragraphs and exhibits of this complaint.
71. There is no denying that Defendant's have repeatedly verified Plaintiff's videos as
Fair Use under the DMCNs exemptions for criticism. Plaintiff contends, and has reason
to believe that, consistent with the Copyright Act (>f the United States of America,
including those laws prohibiting direct, contributory or vicarious infringement, laws
protecting fair use and the First Amendment to the United States Constitution, and
judicial decisions construing such laws, and provisions, the creation and
posting of Viacom and Universal video clips by Plaintiff was and is lawful and
non-infringing. Wherefore, Plaintiffs request that the Court determine and adjudge that
each and every one of the above-stated propositipns states the law applicable to the
facts involved in this action.
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Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 24 of 26
WHEREFORE, Plaintiff prays fqr judgment as follows:
72. A declaratory judgment that Plaintiff has never infringed any copyright that
Defendants lawfully own; Injunctive relief restraining the Defendants, their agents,
servants, employees, successors and assigns, and all others in concert and privity
therewith, from bringing any lawsuit, threatening legal action, or delivering DMCA
take-down notices, or threats to terminate any video posted by Plaintiff or suspension of
the above named accounts in connection with Plaintiff's videos on the above named
Youtube and Myspace accounts including but limited to its publication, distribution,
performance, display, licensing, or the posting to or linking from any website;
Monetary damages; lost potential earnings; Attorneys fees pursuant to 17 U.S.C. §
i
512(f), other portions of the Copyright Act Section 505, or otherwise as
allowed by law; Plaintiff's costs and disbursements; and such other and further relief as
the Court shall find just and proper for the severel emotional stress suffered by Plaintiff
and his family. Plaintiff also requests that Pierre-Lewis and Mark Ishikawa (and
all others who have sent false copyright claims Plaintiff or committed other acts
of perjury be cited for contempt of court for their repeated acts of perjury and be
sentenced to at least 100 days in jail for each fraudulent take-down notice and/or act of
perjury that Defendants used to terrorize the Plaintiff and his family. Plaintiff also
requests a preliminary injunction barring Defend<1nts from producing and/or airing The
Daily Show With John Stewart, The Colbert Report and SNL Weekend Update until this
suit is completed.
Plaintiff Asl<s
73. Plaintiff hereby requests a jury trial for all triable by jury including, but not
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Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 25 of 26
limited to, those issues and claims set forth in any amended complaint or consolidated
I
action.
Upon successful completion of this suit, Plaintiff also request tripling of all monetary
awards due to the conspiratorial nature of the Defendant's partnerships, agreements
and unlawful acts. Plaintiff swears under penalty of perjury that the allegations and
claims made above are true to the best of his possible knowledge under the
circumstances.
Class Action pqtential
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74. Plaintiff wishes to notify this court of his efforts to find an attorney who
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would be willing to file this complaint as a Class t\.ction Suit, due to the fact that
Defendants have a long history of abusing the
Signed:
Todd Damase Ouellette
PO Box 7131, Missoula MT 59802
No Phone #
m
TOddOuellette@
mail
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Date: (I '70 )D
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Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 26 of 26