Copyright Complaint Re Product Descriptions in URL
Copyright Complaint Re Product Descriptions in URL
Copyright Complaint Re Product Descriptions in URL
)
FurnitureDealer.net, Inc. ) Civil Case No.: 0:18-cv-00232 (JRT/FLN)
)
Plaintiffs, )
) FIRST AMENDED COMPLAINT
vs. ) (Copyright Infringement)
)
Amazon.com, Inc., and )
COA, Inc. dba Coaster ) JURY TRIAL DEMANDED
Company of America )
)
Defendants. )
Amazon.com, Inc., and COA, Inc. dba Coaster Company of America states and alleges as
follows:
PARTIES
Springs, California.
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4. This Court has original and exclusive jurisdiction of this action under 28
U.S.C. §§ 1331 and 1338(a) in that this is an action for, without limitation: (i) copyright
infringement arising under the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq.; and (ii)
violation of 17 U.S.C. §§ 1202 et seq. This Court has supplemental jurisdiction pursuant to
28 U.S.C. § 1367(a) over the related claims of breach of contract and common law unjust
enrichment.
5. This Court also has subject matter jurisdiction over Defendants pursuant to
28 U.S.C. § 1332. Plaintiff and Defendants are each citizens of different states, and the
1400(a).
JURY DEMAND
BACKGROUND FACTS
internet marketing solutions for the home furnishings industry. Without limitation,
FurnitureDealer.Net creates, designs, manages and markets over eight hundred and fifty
(850) home furnishings websites. This includes authoring and creating original content
for use on such sites. Accordingly, one of FurnitureDealer.Net’s most valuable assets is
its original product content library consisting of, without limitation, copyright protected
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and search engine optimized descriptive text (“Content Library”). Such Content Library
FurnitureDealer.Net’s clients.
issued by the Register of Copyrights effective September 22, 2015 and confers
11. FurnitureDealer.Net owns all rights, title and interest, including all
intellectual property rights, in the original descriptive text it authored, created and
maintained for Coaster and which is included in its Content Library pursuant to well
established copyright law and the contract entered between FurnitureDealer.Net and
is authorized and licensed to be used solely and exclusively with: i) Coaster’s own
authorized dealers who entered into their own separate licensing agreement with
FurnitureDealer.Net.
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prohibits Coaster from selling, licensing, sharing, copying or giving away any of
Coaster content began appearing on Amazon.com URLs to promote and sell Coaster
authorization
and voluntarily pull down and discontinue use of the infringing material.
unauthorized and infringing use of its Content Library. Amazon.com and Coaster have
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passive host or internet service provider for other third party resellers. Accordingly,
pursuant to the Digital Millennium Copyright Act (“DMCA”) on February 25, 2016.
18. Such take down request was pursuant to and consistent with both the
DMCA and Amazon.com’s own “Notice and Procedure for Making Claims of Copyright
work infringed upon to make it very easy for Amazon.com to identify and take down the
infringing sites.
URLs containing infringing content. The spreadsheet included: (i) a side by side
comparison of the infringing text found at the infringing URLs and the corresponding
FurnitureDealer.Net original text; (ii) the furniture manufacturer’s name (in this case all
the sites involved Coaster branded furniture); (iii) the title or name of the subject Coaster
furniture piece; (iv) a link to the actual infringing URLs; and (v) a link to
automated e-mail response dated February 25, 2016. Amazon.com’s automated response
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included a link to the Amazon.com “Notice and Procedure for Making Claims of
21. Despite fully complying with both the DMCA and Amazon.com
on February 26, 2016 indicating Amazon.com was “unable to accurately identify the
had already provided a detailed spreadsheet containing: (i) active links to three hundred
ninety four (394) representative infringing URLs; and (ii) an actual copy of the infringing
submission of multiple instances of infringement in the same notice. (“If there is more
than one instance of the item, or similar works that you claim to infringe on your
copyright, please provide identifying information for each, but you may include them all
in one notice.”)
URLs directly into a responsive email dated February 26, 2016. FurnitureDealer.Net also
provided and attached courtesy copies of: (i) its original DMCA takedown notice; (ii) the
original detailed spreadsheet containing the very information requested; and (iii)
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Amazon.com’s February 26, 2016 e-mail requesting that the infringing URLs be pasted
and request by way of email dated February 27, 2016. However, rather than taking any
action, Amazon.com advised for the first time that “when submitting notices of copyright
infringement, please identify the exact copyright protected material you claim is being
used by third parties on Amazon.com, such as the specific image or text in question.”
26. Amazon.com’s response ignored the fact that the very information it was
requesting had already been provided on two separate occasions. Amazon.com also
ignored the fact it had previously requested only that the infringing URLs be pasted
dated February 29, 2016 and explained that each of its prior two requests had in fact
being infringed upon. FurnitureDealer.Net again included courtesy copies of the subject
responsive email previously received in response to its initial DMCA takedown notice.
The email acknowledged receipt of what was now FurnitureDealer.Net’s third takedown
request and referred FurnitureDealer.Net to the same “Notice and Procedure for Making
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email also promised that a “response was forthcoming”, and that Amazon.com would
infringing material was not taken down, including remaining on the identified sites.
29. Having received no relief or response to its February 29, 2016 email,
Amazon.com’s Legal Department dated April 1, 2016. The correspondence noted that:
(i) FurnitureDealer.Net had fully complied with both the DMCA and Amazon.com’s
specific requests; and (iii) Amazon.com had failed to take any steps to take down the
enclosed a courtesy copy of its original February 25, 2016 take down request, including
email dated April 5, 2016. Amazon.com alleged that it had received the infringing
Bundy contended, “. . .[T]he advertised items as well as the listed item descriptions are
your client is not receiving the same item descriptions from the manufacturers.”
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FurnitureDealer.Net creates, designs, manages and markets over 850 home furnishings
websites. This includes authoring and creating original descriptive text for use on such
sites.”; (ii) “The subject infringing descriptive text complained about relates solely and
identified to Amazon;” and (v) “Such original descriptive text is utilized to promote and
material and denied Coaster ever granted Amazon.com or any other retailer, including
any retailers associated with the infringing Amazon sites, permission to copy or use any
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as the copyright owner of the subject content. Such notice alerted users - in at least two
(2) places - that "Nothing on this page may be copied or reproduced without explicit
notice:
and contact information for the entity or person purported to have provided such
authority.
FurnitureDealer.Net explained that it tightly controls and limits the use and distribution
of its original descriptive text in order to maximize the search engine optimization and
organic rankings associated with its clients’ sites. The unauthorized placement of
negatively impacts SEO rankings and website traffic for FurnitureDealer.Net’s paying
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37. Amazon.com responded via an email dated April 8, 2016 from Mr. Bundy.
Mr. Bundy reiterated Amazon.com’s allegation that the subject content had been
provided by Coaster. Bundy also alleged Coaster was claiming ownership in all the
material it allegedly provided to Amazon.com. Mr. Bundy attempted to put the burden
was not acting solely as a passive internet service provider (“ISP”) for third party
FurnitureDealer.Net’s copyright protected content to profit from the direct sale of Coaster
infringement.
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an ISP for other third party sellers, Amazon.com had failed to comply with its DMCA
obligations. Without limitation, Amazon.com had not taken down the properly identified
infringing content and had failed to provide a valid or proper “Counter-Notice” received
(i) a signature from the responsible third party; (ii) a statement under penalty of perjury
that such third party has a good faith belief in its claimed right to post the subject
material; (iii) the third party’s name, address, and telephone number; and (iv) if the third
jurisdiction in U.S. federal court and that such third party will accept service of process
ISP with respect to the infringing content being utilized by third party resellers, Amazon
had lost its DMCA provided “safe harbor” or immunity to infringement claims.
FurnitureDealer.Net's owns such text. Accordingly, Amazon's claims to the contrary are
false and puzzling. In an effort to avoid any potential misunderstanding and confusion,
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like to have a telephone conference to discuss this matter. Please let me know your
43. Having received no substantive response to its April 12, 2016 email,
44. Amazon.com responded by way of email dated April 26, 2006 from Mr.
Bundy. Mr. Bundy confirmed Amazon.com was not acting as an ISP but rather was
using the infringing content as a direct seller of Coaster furniture. Mr. Bundy again
alleged Coaster owned the subject content and attempted to put the burden on
“As the detail pages at issue are items "sold by Amazon.com," the alleged
infringement is not subject to the DMCA. We have communicated with
our vendor who has confirmed ownership of the copyrighted content in
question. Amazon.com encourages you to work directly with Coaster
Company of America to resolve the issue. Should you reach a resolution in
your client's favor, Amazon.com will take appropriate action.”
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46. Amazon.com responded by way of a brand new cryptic email dated May
21, 2016. Such email implicitly acknowledged the alleged infringing activity but
author and owner of the original copyright protected content being utilized by
Amazon.com to promote and sell Coaster furniture and confirming Coaster at no time
provided Amazon.com authority to copy or use such FurnitureDealer.Net content for any
original and copyright protected content. Rather, both Amazon.com and Coaster have
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recently learned that Coaster was personally responsible for loading some or virtually all
of the subject FurnitureDealer.Net Coaster material into Amazon.com’s system for use
learned that Coaster has not requested or demanded Amazon.com to stop using and
new revelations, FurnitureDealer.Net now suspects Coaster was also directly and actively
52. Upon information and belief, Amazon.com and Coaster intend to continue
their course of conduct and to wrongfully copy, use, display, publish, infringe upon, sell,
and otherwise profit from FurnitureDealer.Net’s original and copyright protected Coaster
material unless and until Amazon.com and Coaster are enjoined by this Court.
53. As a direct and proximate result of the acts of Amazon.com and Coaster
irreparable damages until Amazon.com’s and Coaster’s actions alleged above are
54. Amazon.com’s and Coaster’s infringing acts and wrongful conduct were,
and, if continued hereafter, will be, committed knowingly, intentionally and willfully.
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COUNT I
56. By their actions alleged above, Defendants have directly infringed and will
continue to directly infringe Plaintiff’s original and copyright protected Coaster material.
officers, agents, and employees, and all persons acting in concert with them, from
including, but not limited to, any gains, profits, and advantages obtained by Defendants
relating to their acts of infringement alleged above. Among other things, Plaintiff is
entitled to recover its lost profits, Defendants’ wrongful profits, diminution in value of
U.S.C. § 504(c)(2), attorneys’ fees, interest, and costs. At present, the amount of such
COUNT II
Contributory Infringement
(Amazon.com and Coaster)
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acts of others by encouraging, inducing, allowing and assisting others to copy, use,
material, including, without limitation, any such copying and use by Amazon.com’s
officers, agents, employees, and all persons acting in concert with them, from engaging in
including, but not limited to, any gains, profits, and advantages obtained by Defendants
relating to their acts of infringement alleged above. Among other things, Plaintiff is
entitled to recover its lost profits, Defendants’ wrongful profits, diminution in value of
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U.S.C. § 504(c)(2), attorneys’ fees, interest, and costs. At present, the amount of such
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COUNT III
Vicarious Infringement
(Amazon.com and Coaster)
66. Numerous individuals and entities directly infringed Plaintiff's original and
67. Defendants had the right and ability to control the infringing acts of the
individuals or entities who directly infringed Plaintiff’s original and copyright protected
Coaster material.
68. Defendants obtained a direct financial benefit from the infringing activities
69. The acts and conduct of Defendants, as alleged herein, constitute vicarious
copyright infringement.
officers, agents, and employees, and all persons acting in concert with them, from
including, but not limited to, any gains, profits, and advantages obtained by Defendants
relating to their acts of infringement alleged above. Among other things, Plaintiff is
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entitled to recover its lost profits, Defendants’ wrongful profits, diminution in value of
17 U.S.C. § 504(c)(2), attorneys’ fees, interest, and costs. At present, the amount of such
COUNT IV
and/or altered and have caused and induced others to remove and/or alter such copyright
distributed the improperly modified works, having reasonable grounds to know that such
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modified works was, and is, willful and intentional, and was, and is, executed with full knowledge
rights.
the violation and any profits of Defendants attributable to the violation and not taken into account
17 U.S.C. § 1203(c).
79. Defendants’ violations of 17 U.S.C. § 1202(b)(1) and (3) have caused, and, unless
restrained by this Court, will continue to cause, irreparable injury to FurnitureDealer.Net not fully
entitled to a preliminary and permanent injunction enjoining Defendants from further such
violations.
COUNT V
Unjust Enrichment
(Amazon.com and Coaster)
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81. Defendants have unlawfully received benefits from their unauthorized use
82. Defendants have accepted and retained the benefits knowing that their
conduct was unjust and that retaining the benefits was inequitable.
83. Defendants have been, and continue to be, unjustly enriched by retaining
COUNT VI
Breach of Contract
(Coaster)
85. Defendant Coaster voluntarily accepted and agreed to the terms of the
Coaster Agreement, including, without limitation: i) the limited authorization and license
to use FurnitureDealer.Net’s Coaster content solely and exclusively with Coaster’s own
dealers who entered into a separate licensing agreement with FurnitureDealer.Net; and ii)
the prohibition on Coaster selling, licensing, sharing, copying or giving away any of
86. Upon information and belief, Coaster violated and breached the Coaster
Agreement by, inter alia, copying and/or uploading FurnitureDealer.Net’s original and
copyright protected Coaster material to Amazon.com and others for use with
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87. Plaintiff has been, and will continue to be, damaged as a result and
88. Plaintiff has been, and will continue to be, irreparably harmed by this
COUNT VII
91. The Coaster Agreement contained implied covenants of good faith and fair
dealing providing that neither party would act to deprive the other of the benefits of the
faith and fair dealing between FurnitureDealer.Net and Coaster, including, without
limitation, by Coaster falsely representing that it had not granted permission or authority
personally responsible for uploading the content to Amazon.com for use with
delayed FurnitureDealer.Net’s efforts to enforce it rights and obtain the full benefits of
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93. As a direct and proximate result of such breach and Coaster’s wrongful
WHEREFORE, Plaintiff respectfully request that this Court enter judgment in its
1. That the Court find that Plaintiff has a valid copyright for its Content
2. That the Court find that Defendants have infringed Plaintiff’s copyright;
4. That the Court find that Defendants removed and/or altered Plaintiff’s
5. That the Court find that there is a substantial likelihood that Defendants
will continue to infringe Plaintiff’s copyrights and violate 17 U.S.C. § 1202(b)(1) and (3)
6. That the Court find that Defendants have been unjustly enriched by their
conduct;
7. That the Court find that Defendant Coaster breached the Coaster
Agreement and breached the implied covenant of good faith and fair dealing
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and all other persons in active concert or privity or in participation with them, be enjoined
from: (i) directly or indirectly continuing to infringe Plaintiff’s copyright, including being
activity; and (ii) directly or indirectly continuing to violate 17 U.S.C. § 1202(b)(1) and (3);
and all other persons in active concert or privity or in participation with them, be required
to return to Plaintiff any and all versions, copies, or duplicates, in whatever form, of any
custody;
10. That Defendants be required to file with the Court and to serve on Plaintiff
a written report, under oath, setting forth in detail the manner and form in which
11. That judgment be entered for Plaintiff and against Defendants for Plaintiff’s
actual damages, which include, among other things, its lost profits, diminished value of
its Content Library, and for Defendants’ profits relating to Defendants’ conduct
complained of herein;
12. That judgment be entered for Plaintiff and against Defendants for statutory
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13. That Defendants be required to account for all gains, profits, and
advantages derived from their acts complained of herein and/or other violations of law;
14. That all gains, profits, and advantages derived by Defendants from their
15. That the Court enter judgment for Plaintiff and against Defendants for
enhanced damages due to the willful, intentional and bad faith nature of Defendant’s
16. That the Court enter judgment for Plaintiff and against Defendants for
17. That the Court enter judgment against Defendants and for Plaintiff for such
other and further relief as the Court deems appropriate and equitable.
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