Case 1:21-cv-04813 Document 1 Filed 05/29/21 Page 1 of 11

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Laszlo PUSZTAI, an individual, and DIRE

STUDIO SZOLGÁLTATÓ Index No. ____________
KORLÁTOLT FELELŐSSÉGŰ
TÁRSASÁG, a Hungarian limited
liability company (d/b/a “DIRE Studio COMPLAINT AND JURY DEMAND
Kft.”),

Plaintiffs,

v.

APPLE, INC., a California corporation,

Defendant.

Plaintiffs Laszlo Pusztai (“Pusztai”) and DIRE Studio Szolgáltató Korlátolt Felelősségű

Társaság (“DIRE Studio”), by and through undersigned counsel, bring this Complaint and Jury

Demand against defendant Apple, Inc. (“Apple”), for damages and injunctive relief, and in

support thereof states as follows:

THE PARTIES

1. Pusztai is a photographer and programmer. He is a citizen and resident of Hungary. He

created an application called “ShutterCount,” (the “Pusztai App”) designed to interface with

users’ digital cameras and display to users the total “shutter counts” for each camera. This is

especially useful in the active market for pre-owned digital cameras. Pusztai remains the

copyright holder of the Pusztai App.

2. DIRE Studio is a Hungarian limited liability company, maintaining its offices in

Budapest, Hungary. It is the exclusive licensee of the Pusztai App.

3. Defendant Apple is a California corporation maintaining its principal office in Cupertino,

California. It is authorized to do business in New York as a foreign corporation. Its registered

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agent for service of process is located in this District. Apple’s flagship retail store is located in

this District. On information and belief, Apple maintains corporate offices in more than one

location in this District.

JURISDICTION AND VENUE

4. This is an action arising under the Copyright Act, 17 U.S.C. §§ 501, et seq. and §§ 1201,

et seq.

5. This Court has subject matter jurisdiction over these claims pursuant to 28 U.S.C. §§

1331, 1332 and 1338(a).

6. Apple is subject to personal jurisdiction in New York, and venue in this district is proper

under 28 U.S.C. § 1400(a), because Apple maintains both major retail outlets and substantial

corporate offices in this District, has appointed an agent in this District to receive service of

process, and therefore Apple or its agent resides or may be found in this District.

PLAINTIFF’S COPYRIGHTS AND DEFENDANT’S INFRINGEMENT

7. Plaintiffs bring this action for violations of exclusive rights under the Copyright Act, 17

U.S.C. § 106, to reproduce and distribute Plaintiffs’ original copyrighted works of authorship,

and also for violations of the copyright laws of several foreign jurisdictions.

8. In 2013, DIRE Studio authorized Apple to sell copies of the Pusztai App through Apple’s

online store, known as the “App Store.” DIRE Studio has periodically released via the App

Store updated versions of the Pusztai App. In 2017, DIRE Studio released – successively –

versions 3.0, 3.1 and 3.2 of the Pusztai App.

9. Each of versions 3.0, 3.1, and 3.2 of the Pusztai App are registered with the U.S.

Copyright Office as, respectively, TX 8-963-783, TX 8-963-778 and TX 8-963-782. True and

correct copies of the registration certificates are attached hereto as Exhibit 1.

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10. The Pusztai App consists of a body of software code which allows the device on which it

resides – either an Apple “Macintosh” brand computer running Apple’s “MacOS” operating

system or an Apple mobile device running Apple’s “iOS” operating system – to communicate

with the “firmware” built into certain digital cameras. It does this by formulating particular

instructions – the “communication code” – specific to each camera, which the Pusztai App sends

to a camera’s firmware, instructing the camera’s firmware to report to the Pusztai App certain

data from which the Pusztai App is able to calculate the number of times the camera shutter has

been actuated.

11. Certain digital cameras operate in two modes, called “viewfinder” (employed with the

camera close to the photographer’s eye to judge the frame of the image) and “live view” (which

shows the composition on a larger LCD screen, so the image can be framed while the camera is

held away from the photographer’s eye). The data reported by camera firmware allows the

Pusztai app to calculate separately the number of “viewfinder” actuations and the number of

“live view” actuations.

12. Once the Pusztai App receives the raw “shutter count” data from the camera’s firmware,

it calculates the shutter actuation counts in each mode – “viewfinder” and “live view” modes –

and presents that information graphically to the user. When operated under certain conditions,

the Pusztai App contains an inadvertent error which misinterprets shutter actuation data when

that actuation occurs in “live view” mode: the Pusztai App mistakenly double-counts each

incremental “live view” actuation and simultaneously reduces by one the count of “viewfinder”

actuations.”

13. By way of illustration, consider a camera which reported to the Pusztai App data

indicating that there had been 18632 viewfinder actuations and 4713 live view actuations.
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Thereafter, that camera is subsequently placed in “live view” mode and the photographer takes a

single test shot. If the Pusztai App were to query that camera’s firmware a second time, the

Pusztai App display would show 18631 “viewfinder” actuations (one less than previously) and

4715 “live view” actuations (two more than previously).

14. On information and belief, in or about April 2014, a Russian citizen named Konstantin

Pavlikhin (“Pavlikhin”) authored an application called “EOS Inspector,” designed to run on

Macintosh computers running Apple’s MacOS. “EOS Inspector – similarly to the Pusztai App –

allowed users to obtain from certain models of the Canon “EOS” brand of digital camera “shutter

counts” documenting how heavily each camera has been used.

15. On information and belief, in or about 2017, Pavlikhin purchased one or more copies of

versions 3.0, 3.1 and/or 3.2 of the Pusztai App from the App Store. On information and belief,

Pavlikhin copied substantial sections of the source code embodied in the Pusztai App, and

created an unauthorized derivative work – a new version of the “EOS Inspector” application,

later renamed “ShutterCheck” (the “Infringing Pavlikhin App”) – which Pavlikhin licensed for

sale on the App Store in or about June 2018.

16. Testing the Infringing Pavlikhin App shows that it incorporates the same calculation error

with respect to miscounting actuations occurring in “live view” mode. This and other findings

indicate that Pavlikhin – without license from the Plaintiffs – reproduced Pusztai’s original

software code as embodied in the Pusztai App, made unauthorized derivative works therefrom,

and/or distributed those unauthorized derivative works – the several sequential versions of the

Infringing Pavlikhin App – in violation of 17 U.S.C. § 106, and the laws of several foreign

jurisdictions.
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17. In or about June 2018, Apple began distributing copies of the Infringing Pavlikhin App to

the public through its App Store. On information and belief, Apple retained thirty percent (30%)

of revenue derived from sales of the Infringing Pavlikhin App.

18. On or about June 11, 2018, Plaintiffs gave written notice to Apple, including all the

information necessary under 17 U.S.C. 512(c)(3), that the Infringing Pavlikhin App infringed the

Pusztai App.

19. Thereafter, until approximately December of 2020 – almost thirty (30) months after

Plaintiffs notified Apple that the Infringing Pavlikhin App infringed the Pusztai App – Apple

declined to remove the Infringing Pavlikhin App from the App Store, resulting in substantial

damage to Plaintiffs. Instead, Apple continued to distribute, and to collude in the distribution of,

the Infringing Pavlikhin App, to its profit and to Plaintiff’s injury.

20. Indeed, on information and belief, Apple continues to permit the download of newer

versions of the Infringing Pavlikhin App from the App Store to customers who had purchased

prior versions of the Infringing Pavlikhin App. Further, though Apple has disabled new

purchases of the Infringing Pavlikhin App via the App Store, on information and belief, Apple

continues to assist Pavlikhin to distribute the Infringing Pavlikhin App through other channels by

certifying that the Infringing Pavlikhin App does not contain malware, and by issuing a “code

signing certificate” for the Infringing Pavlikhin App, permitting it to run on Apple’s MacOS

operating system.

COUNT 1
DIRECT COPYRIGHT INFRINGEMENT: 17 U.S.C. §§ 501 et seq.

21. Plaintiffs incorporate the allegations of paragraphs 1-20 above as if fully set forth herein.

22. Plaintiff Pusztai holds a valid copyright in the Pusztai App, all relevant versions of which

are registered with the U.S. Copyright Office.

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23. Pavlikhin, without authorization, copied substantial portions of the source code of the

Pusztai App, and incorporated them into an unauthorized derivative work, the Infringing

Pavlikhin App.

24. From approximately June 2018, Apple distributed the Infringing Pavlikhin App to the

public in the United States and elsewhere.

25. Despite notice of the infringing nature of the Infringing Pavlikhin App, Apple

disregarded that notice and continued for more than two years to distribute the Infringing

Pavlikhin App to the public. On information and belief, it continues to do so to customers who

bought prior versions of the Infringing Pavlikhin App.

26. By reason of Apple’s distribution of the Infringing Pavlikhin App, Apple is directly liable

to Plaintiffs for damages resulting from Apple’s distribution of the Infringing Pavlikhin App.

COUNT 2
VICARIOUS AND/OR CONTRIBUTORY
COPYRIGHT INFRINGEMENT: 17 U.S.C. §§ 501 et seq.

27. Plaintiffs incorporate the allegations of paragraphs 1-26 above as if fully set forth herein.

28. Plaintiff Pusztai holds a valid copyright in the Pusztai App, all relevant versions of which

are registered with the U.S. Copyright Office.

29. Pavlikhin, without authorization, copied substantial portions of the source code of the

Pusztai App, and incorporated them into an unauthorized derivative work, the Infringing

Pavlikhin App.

30. From approximately June 2018, Pavlikhin – using the Apple App Store – distributed the

Infringing Pavlikhin App to the public in the United States and elsewhere.

31. Apple had the right and ability to supervise Pavlikhin’s use of the App Store to distribute

the Infringing Pavlikhin App, and profited from that distribution, despite timely notice that the

Infringing Pavlikhin App infringed the Pusztai App.

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32. Further, Apple continues to assist Pavlikhin in distributing the Infringing Pavlikhin App

via other channels by certifying it free of malware and issuing a code signing certificate

permitting the Infringing Pavlikhin App to run on Apple’s MacOS operating system.

33. By reason of Apple’s control of and profit from Pavlikhin’s use of the App Store to

distribute the Infringing Pavlikhin App, and its continuing assistance to Pavlikhin in certifying

the Infringing Pavlikhin App, Apple is vicariously and/or contributorily liable to Plaintiffs for

damages resulting from Pavlikhin’s distribution of the Infringing Pavlikhin App.

COUNT 3
COPYRIGHT INFRINGEMENT: GERMANY

34. Plaintiffs incorporate the allegations of paragraphs 1-33 above as if fully set forth herein.

35. Plaintiff Pusztai holds a valid copyright in the Pusztai App.

36. Pavlikhin, without authorization, copied substantial portions of the source code of the

Pusztai App, and incorporated them into an unauthorized derivative work, the Infringing

Pavlikhin App.

37. From approximately June 2018, Apple distributed and made the Infringing Pavlikhin App

available to the public in the Federal Republic of Germany.

38. By reason of Apple’s distribution of the Infringing Pavlikhin App, Apple is directly liable

under German law to Plaintiffs for damages resulting from Apple’s distribution and making

available to the public of the Infringing Pavlikhin App, or alternatively, indirectly liable to

Plaintiffs for damages from Pavlikhin’s distribution and making available to the public of the

Infringing Pavlikhin App. Further, Apple is liable to Plaintiffs under German law for its unjust

enrichment resulting from its actions described herein. Finally, the Court should award to

Plaintiffs their attorneys’ fees and costs, pursuant to German law.

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COUNT 4
COPYRIGHT INFRINGEMENT: UNITED KINGDOM

39. Plaintiffs incorporate the allegations of paragraphs 1-38 above as if fully set forth herein.

40. Plaintiff Pusztai holds a valid copyright in the Pusztai App.

41. Pavlikhin, without authorization, copied substantial portions of the source code of the

Pusztai App, and incorporated them into an unauthorized derivative work, the Infringing

Pavlikhin App.

42. From approximately June 2018, Apple distributed and made the Infringing Pavlikhin App

available to the public in the United Kingdom.

43. By reason of Apple’s distribution of the Infringing Pavlikhin App, Apple is liable under

British law to Plaintiffs for damages resulting from Apple’s distribution, and communication to

the public, of the Infringing Pavlikhin App. Additionally, the Court should award to Plaintiffs

their attorneys’ fees and costs pursuant to British law.

COUNT 5
COPYRIGHT INFRINGEMENT: AUSTRALIA

44. Plaintiffs incorporate the allegations of paragraphs 1-43 above as if fully set forth herein.

45. Plaintiff Pusztai holds a valid copyright in the Pusztai App.

46. Pavlikhin, without authorization, copied substantial portions of the source code of the

Pusztai App, and incorporated them into an unauthorized derivative work, the Infringing

Pavlikhin App.

47. From approximately June 2018, Apple distributed and communicated the Infringing

Pavlikhin App to the public in Australia.

48. By reason of Apple’s distribution of the Infringing Pavlikhin App, Apple is liable under

Australian law to Plaintiffs for damages and Apple’s profits resulting from Apple’s distribution,

publication and/or communication to the public of the Infringing Pavlikhin App. Further, the
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Court should award damages for conversion of each copy of the Infringing Pavlikhin App, and

also Plaintiffs’ costs and attorneys’ fees, pursuant to Australian law.

COUNT 6
COPYRIGHT INFRINGEMENT: CANADA

49. Plaintiffs incorporate the allegations of paragraphs 1-48 above as if fully set forth herein.

50. Plaintiff Pusztai holds a valid copyright in the Pusztai App.

51. Pavlikhin, without authorization, copied substantial portions of the source code of the

Pusztai App, and incorporated them into an unauthorized derivative work, the Infringing

Pavlikhin App.

52. From approximately June 2018, Apple distributed and made the Infringing Pavlikhin App

available to the public in Canada.

53. By reason of Apple’s distribution of the Infringing Pavlikhin App, Apple is liable under

Canadian law to Plaintiffs for, at Plaintiffs’ election, either damages and Apple’s profits resulting

from Apple’s distribution and making available of the Infringing Pavlikhin App, or statutory

damages. Given Apple’s persistence in distributing and making available the Infringing

Pavlikhin App long after it had notice of its infringing nature, the Court should also award

Plaintiffs exemplary damages pursuant to Canadian law. Finally, the Court should award

Plaintiffs their attorneys’ fees and costs, pursuant to Canadian law.

COUNT 7
COPYRIGHT INFRINGEMENT - PERMANENT INJUNCTION

54. Plaintiffs incorporate the allegations of paragraphs 1-53 of this Complaint as if fully set

forth herein.

55. Plaintiff Pusztai holds a valid copyright in the Pusztai App.

56. Plaintiff Pusztai registered the Pusztai App with the Register of Copyrights pursuant to

U.S.C. § 411(a).
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57. Apple has distributed the Infringing Pavlikhin App at issue without Plaintiffs’

authorization in violation of 17 U.S.C. § 106, and on information and belief, despite repeated

notice of the infringing nature of the Infringing Pavlikhin App, continued and still continues to

do so, albeit in more limited circumstances, and to certify and enable the use of the Infringing

Pavlikhin App on devices running Apple’s MacOS operating system.

58. Apple performed the acts alleged in the course and scope of its business activities.

59. As a direct and proximate result of Apple’s infringement, Plaintiffs have been damaged.

60. Apple has limited, but not ceased, distributing and making the Infringing Pavlikhin App

available to the public via the App Store, and continues to certify and enable the use of the

Infringing Pavlikhin App on devices running Apple’s MacOS operating system. Accordingly,

the threat of further damages is continuing and not wholly compensable by monetary damages.

61. Pursuant to 17 U.S.C. §502, Plaintiffs are entitled to permanent injunctive relief barring

defendants from further distribution of the Infringing Pavlikhin App, and further assistance to

Pavlikhin in the form of certification of the Infringing Pavlikhin App.

62. WHEREFORE, Plaintiffs pray for judgment against the defendants that:

63. Apple and its affiliated entities, and all of those in active concert with them, be

preliminarily and permanently enjoined from distributing the Infringing Pavlikhin App or aiding

Pavlikhin in its distribution;

64. Apple be required to pay Plaintiffs their actual damages and Apple’s and Pavlikhin’s

profits attributable to the infringement as provided in 17 U.S.C. § 504, including pre-and post-

judgment interest and, with respect to infringing distribution occurring after the registration of

the Pusztai Apps, either (at Plaintiffs’ option) (i) Plaintiff’s actual damages and Apple’s and
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Pavlikhin’s profits attributable to the infringement or (ii) statutory damages as provided in 17

U.S.C. § 504;

65. Apple be required to pay, as applicable, damages (including exemplary damages), profits,

pre-and post-judgment interest, as applicable, and Plaintiff’s attorneys’ fees and costs, as

warranted by 17 U.S.C. §§ 504 and 505 and the laws of each foreign jurisdiction specified in the

Complaint; and

66. Plaintiffs be awarded such other and further relief as the Court deems just and proper.

JURY DEMAND

Plaintiffs hereby demand a trial by jury of all issues so triable.

DATED: May 29, 2021 Respectfully submitted,

/s/ Joshua Graubart

LAW OFFICES OF JOSHUA GRAUBART, P.C.

Joshua Graubart
1177 Avenue of the Americas, 5th Floor
New York, New York 10036
TEL: (646) 781-9321
FAX: (646) 224-8088
jggraubart@graubartlaw.com

Attorney for Plaintiffs