`Case 2:33-av-00001 Document 20964 Filed 04/11/14 Page 1 of 15 PageID: 541625
`
`Ronald Abramson
`David G. Liston
`LEWIS BAACH pllc
`The Chrysler Building
`405 Lexington Avenue
`New York, NY 10174
`Tel: (212) 826-7001
`
`Attorneys for Plaintiff
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`
`
`
`
`Civil Action No.:
`
`
`
`
`
`
`
`
`COMPLAINT FOR PATENT
`INFRINGEMENT
`
`and
`
`DEMAND FOR JURY TRIAL
`
`
`
`
`WAG ACQUISITION, L.L.C.,
`
` Plaintiff,
`
`v.
`
`MULTI MEDIA, LLC, f/k/a Zmedianow,
`LLC, d/b/a chaturbate.com;
`
`
`HEARILLE SERVICES LIMITED, d/b/a
`chatbill.com;
`
`
`CWIE, LLC, d/b/a Cavecreek
`Wholesale Internet Exchange,
`Cavecreek Web Hosting, and
`highwebmedia.com;
`
`
`CCBILL, LLC;
`
`CWIE HOLDING COMPANY, INC.; and
`
`DOES 1-20,
`
` Defendants.
`
`
`
`
`
`
`
`
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`2
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`
`
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiff WAG ACQUISITION, L.L.C., for its complaint against Defendants,
`
`alleges infringement of United States Patent Nos. 8,122,141 and 8,327,011 (the
`
`“patents-in-suit”). Plaintiff alleges that Defendants directly and indirectly infringe
`
`the patents-in-suit by conduct including without limitation their Internet delivery of
`
`live adult video web cam performances, as more particularly specified herein.
`
`THE PARTIES
`
`1. Plaintiff WAG Acquisition, L.L.C. is a New Jersey limited liability company
`
`with its principal place of business at 3 Gold Mine Road, Suite 104, Flanders, New
`
`Jersey 07836.
`
`2. On information and belief, Defendant MULTI MEDIA, LLC (“MMLLC”) is a
`
`California limited liability company with its principal place of business at 23600 El
`
`Toro Road, #D344, Lake Forest, California 92630. On information and belief,
`
`MMLLC was formerly known as ZMEDIANOW, L.L.C., and located at 200 Goddard
`
`Drive, Irvine, California 92618. On information and belief, MMLLC is doing business
`
`under a number of trade names, including without limitation chaturbate.com.
`
`3. On information and belief, Defendant HEARILLE SERVICES LIMITED
`
`(“Hearille”) is a United Kingdom private limited company with offices at 17 Rolling
`
`Mill, Consett, County Durham, DH8 6NH, United Kingdom, which also maintains an
`
`address at 10 Quentin Drive, Dudley, West Midlands, UK, DY1 2H, United Kingdom.
`
`On information and belief, Hearille performs billing and other services for
`
`Defendants.
`
`
`
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`
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`4. On information and belief, Defendant CWIE, LLC (“CWIE”) is an Arizona
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`limited liability company with offices at 2353 West University Drive, Tempe,
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`Arizona 85281. On information and belief, Defendant CWIE is doing business under
`
`trade names including without limitation Cavecreek Wholesale Internet Exchange,
`
`3
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`Cavecreek Web Hosting, and highwebmedia.com.
`
`5. On information and belief, Defendant CCBILL, LLC (“CCBILL”) is an
`
`Arizona limited liability company with offices at 2353 West University Drive,
`
`Tempe, Arizona 85281.
`
`6. On information and belief, Defendant CWIE HOLDING COMPANY, INC.
`
`(“CWIE HOLDING”) is an Arizona corporation with offices at 2353 West University
`
`Drive, Tempe, Arizona 85281. On information and belief, Defendant CWIE HOLDING
`
`owns 100% of each of Defendants CWIE and CCBILL.
`
`7. On information and belief, Defendants DOE 1 – DOE 20 are entities whose
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`precise identities are unknown to Plaintiff at this time, which operate in concert
`
`with Defendants MMLLC, Hearille, CWIE, CCBILL, and CWIE HOLDING in connection
`
`with the conduct complained of herein.
`
`JURISDICTION AND VENUE
`
`8. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331
`
`and 1338(a) because this action arises under the patent laws of the United States, 35
`
`U.S.C. §§ 1 et seq.
`
`9. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)-(c) and
`
`1400(b).
`
`
`
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`4
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`
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`PLAINTIFF’S BUSINESS AND DEVELOPMENTS
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`10.. Plaintiff, operating under the trade name SurferNETWORK, is in the
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`business of providing Internet broadcasting services for live and on-demand audio
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`and video program material. Plaintiff began this business in 1998, and has been one
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`of the leading providers of such services to the terrestrial radio stations and other
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`content providers that comprise its customer base.
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`11. Early in developing its business, two of Plaintiff’s principals, William A.
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`Grywalski, (“Grywalski”) and Harry Emerson (“Emerson”), recognized a need that
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`existed in the field of Internet delivery of broadcast media due to the shortcomings
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`in then current Internet streaming technologies. They observed that long startup
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`delays due to “buffering” and frequent program interruptions (sometimes referred
`
`to as “jitter”) made the experience of trying to listen to or view streaming Internet
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`content frustrating to the end user, and therefore impractical as a content delivery
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`mechanism. They were interested in making the Internet streaming experience
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`more like radio or television, including the immediacy of having the programming
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`appear to start instantly on demand (e.g., turning on a radio or flipping channels),
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`and continue playing once started without random interruptions.
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`12. Plaintiff engaged the assistance of a software design engineer, Harold
`
`Price (“Price”), to develop solutions for the shortcomings that Grywalski and
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`Emerson saw in the current technology, with respect to streaming media playback
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`performance, as well as other technological issues concerning Internet delivery of
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`broadcast media. Price worked on several aspects of this matter for Plaintiff over
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`the period 1999-2001.
`
`
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`5
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`
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`13. Price was aware of the then current approach to streaming, which
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`attempted to overcome streaming transmission delays and jitter by a variety of
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`techniques, including, for example, establishing a content buffer of 20-seconds or so
`
`in duration, on the receiving (user or “client”) end of the communication, within the
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`client’s media player or media player browser plugin. After the user selected (e.g.,
`
`clicked on) a stream, the player would start filling this buffer at the playback rate
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`and then start playing when the buffer was full. While this method did provide
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`some protection against interruptions for the duration of whatever content was
`
`initially buffered, it entailed an undesirable startup delay for “buffering,” and
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`provided no means for graceful recovery once the 20 seconds worth of content in
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`the buffer was consumed.
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`14. Price conceived of solutions to these problems. He built a prototype that
`
`implemented one embodiment of those solutions, and he demonstrated that a
`
`system according to his new design could overcome the problems put to him by
`
`Grywalski and Emerson.
`
`15. Plaintiff and its predecessors in interest filed a number of U.S. patent
`
`applications on these solutions, as enumerated below. To date, this family of patent
`
`applications has resulted in seven issued U.S. patents, including the two patents-in-
`
`suit. All of these patent applications were assigned to Plaintiff, or to a predecessor-
`
`in-interest of Plaintiff and reassigned to Plaintiff.
`
`16. Plaintiff has been conducting an active, operating business ever since the
`
`developments described above, and has actively practiced under the technology
`
`taught in the patents-in-suit, from then to the present. Plaintiff has developed
`
`
`
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`6
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`
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`commercial arrangements under which it streams content for numerous terrestrial
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`radio stations and content providers in New Jersey, regionally, nationally, and
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`internationally. It also provides a One-Click Royalty ReporterTM for radio stations to
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`report streaming media performance royalty information to SoundExchange (a
`
`performing rights organization that collects royalties on the behalf of sound
`
`recording copyright owners ), among other services.
`
`17. Despite its successes, Plaintiff’s business has been damaged by
`
`infringement such as that practiced by the Defendants.
`
`THE PATENTS-IN-SUIT
`
`18. United States Patent No. 8,122,141 (the ’141 patent”) was duly and
`
`legally issued on February 21, 2012, for an invention entitled “STREAMING MEDIA
`
`BUFFERING SYSTEM.” Plaintiff is the owner by assignment of the ’141 patent and
`
`owns all rights to recover for past and ongoing infringement thereof.
`
`19. United States Patent No. 8,327,011 (the ’011 patent”) was duly and
`
`legally issued on December 4, 2012, for an invention entitled “STREAMING MEDIA
`
`BUFFERING SYSTEM.” Plaintiff is the owner by assignment of the ’011 patent and
`
`owns all rights to recover for past and ongoing infringement thereof.
`
`DEFENDANTS’ ACTIVITIES
`
`20. Defendants are in the business of providing and hosting live adult
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`webcam performances over the Internet, and providing an online social venue in
`
`which users can interact with other users online, including without limitation
`
`through the site chaturbate.com. Users can “tip” other users and pay them to go into
`
`
`
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`
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`“private” sessions, and some users specialize as chaturbate.com “Models” to earn
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`these revenues. The payments may be made by way of “tokens,” which the users
`
`purchase from Defendants. Defendants allow users to cash in their tokens, but take
`
`a substantial revenue share as a result in the money that users spend on the site. On
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`7
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`information and belief, Defendants have recruited a large number of webcam
`
`performers in the U.S., Western and Eastern Europe, and elsewhere, to form an
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`online pornography enterprise of national and international scope.
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`21. The live performances described in the preceding paragraph are
`
`streamed to Internet users through server installations under Defendants’
`
`ownership or control. The streaming transmissions are targeted to Internet users
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`around the world, on diverse systems, including, without limitation, desktop
`
`computers, as well as smartphones and tablets running under various operating
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`systems and environments, including without limitation, as the case may be, Apple®
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`iOS and AndroidTM mobile operating systems, the Windows®, and OS X® desktop
`
`operating systems, and Safari®, ChromeTM, Firefox®, OperaTM, Internet Explorer®,
`
`and other Internet browsers.
`
`22. Defendants aggressively market their live webcam services to a
`
`worldwide audience, including, on information and belief, a substantial volume of
`
`users in this District, from which defendants derive substantial revenues. On
`
`information and belief, Defendants’ worldwide collection of performers includes
`
`New Jersey residents, who perform online over Defendants’ infringing services,
`
`from New Jersey, using facilities provided by Defendants. On information and belief,
`
`
`
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`8
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`
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`Defendants also regularly make business visits to New Jersey and sponsor events in
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`New Jersey to promote their online services to New Jersey residents and others.
`
`23. Adult streaming media is an extremely high volume business, which is
`
`well known as consuming a high percentage of the total bandwidth available on the
`
`Internet. Operating in this market requires sophisticated technology and complex
`
`infrastructure.
`
`24. While the operational demands of the adult streaming business entail
`
`high infrastructure cost, the market for Defendants’ services is also very large,
`
`making the business extremely lucrative.
`
`25. Success in Defendants’ business is highly dependent on fast, smooth,
`
`uninterrupted delivery of streaming media content, such as that made possible by
`
`Plaintiff’s patents. Defendants derive great value as a result of operating under
`
`Plaintiff’s patented technology, for which they have not compensated Plaintiff.
`
`26. Defendants provide their various telecommunications services as
`
`described herein from banks of computers, configured as web and/or media
`
`servers. At least some of the servers accused of infringement herein are hosted by
`
`Defendant CWIE, under the trade name Cavecreek Web Hosting and/or
`
`highwebmedia.com, from servers at the domain highwebmedia.com. On
`
`information and belief, Defendant CWIE provides more than mere physical facilities
`
`to MMLLC, providing to MMLLC and/or others configured streaming services for
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`both Video on Demand (“VOD”) and live webcam streaming. For example, CWIE
`
`advertises that, under the trade name “Cavecreek Web Hosting,” it provides
`
`“VOD/Live Cam” services as part of its hosting services, stating:
`
`
`
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`9
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`
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`“Cavecreek’s video solutions leverage an easy-to-use, high performance
`player and content management system (CMS). When layered with
`Cavecreek hosting/CDN and CCBill processing, our VOD and Live Cam
`solutions enable you to upload, encode, and manage files, as well as monetize
`and deliver your video and live cam content to increase your revenues.”
`
`Based on the streams provided by highwebmedia.com for chaturbate.com, Plaintiff
`
`believes Defendant CWIE’s “VOD and Live Cam solutions” to be infringing.
`
`27. Defendants’ servers are configured to stream Defendants’ live webcam
`
`performances and other video streams over a variety of delivery technologies to,
`
`inter alia, desktop computers and mobile devices, including without limitation,
`
`smartphones and tablets as described above, in a manner that infringes Plaintiff’s
`
`patents.
`
`28. Defendants also provide an “Affiliate” program, under which Defendants’
`
`chaturbate.com and other webcam sites can be adapted (“white labeled”) for other
`
`Internet service providers on a revenue splitting basis, or simply linked to, on a
`
`similar basis. Through such affiliation, providers of other prominent pornography
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`sites (frequently “Tube” (Youtube-style) sites offering short, low-quality,
`
`prerecorded clips on a free basis), provide a paid, revenue-generating webcam
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`adjunct service under the Tube site provider’s own branding. The live webcam
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`Affiliate site will appear to the user of the Tube site as a click-through site, or in a
`
`window that pops over the Tube site. Though branded and decorated to look like
`
`the Tube site, the Affiliate site is actually served by MMLLC and/or one of the other
`
`Defendants herein. The Affiliate site provider and the Defendants split the revenue
`
`resulting from the Affiliate site activity, in accordance with the terms of Defendants’
`
`Affiliate program.
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`
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`10
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`
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`29. On information and belief, Defendants Hearille and CCBILL provide
`
`services to the other Defendants, including without limitation billing and payment
`
`processing services. As may be seen in the advertising material of Defendant CWIE
`
`noted above, Defendants offer billing services of CCBILL as part of a package
`
`“layered” with Defendants’ “VOD and Live Cam solutions,” to provide a benefit in
`
`terms of increased revenues. On information and belief (and without limiting any
`
`other allegation herein concerning Defendants’ concerted activities), Defendants
`
`Hearille and CCBILL economically benefit from Defendants’ infringement, in that
`
`said infringement, by using Plaintiff’s patented Internet streaming delivery
`
`technology, greatly improves the quality, reliability, and responsiveness of
`
`Defendants’ streaming video, thereby drawing users to Defendants’ websites, and
`
`increasing the billing revenues.
`
`30. On information and belief, defendants DOE 1– DOE 20 (“Doe
`
`Defendants”) include persons and entities that materially aid and assist in carrying
`
`out the infringing acts alleged herein. The Doe Defendants include without
`
`limitation operators of “Affiliated” web sites that are cosmetically modified versions
`
`of chaturbate.com or others of Defendants’ webcam sites, carrying the branding of
`
`such Doe Defendants. These Doe Defendants participate in revenue split deals with
`
`the other Defendants named herein (as described above in connection with
`
`Defendants’ Affiliate program), under which they take a substantial share in
`
`revenues derived from infringing Plaintiff’s patents.
`
`
`
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`
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`31. As a consequence of the above described activities, Defendants have
`
`infringed and are continuing to infringe Plaintiff’s patents, including at least the
`
`11
`
`patents-in-suit.
`
`COUNT I: INFRINGEMENT OF THE ’141 PATENT
`
`32. Plaintiff repeats and realleges the allegations of paragraphs 1-31 above
`
`as if fully set forth at length herein.
`
`33. Defendants have and continue to directly and indirectly infringe at least
`
`claims 1-8, 10-17, 19-21, 23, and 24-28 of the ‘141 patent by providing streaming
`
`performances over the Internet through their manufacture, distribution, use, sale,
`
`importation, and/or offer for sale of systems, methods, products, and processes for:
`
` creating or storing on their servers streaming media from a live
`source (or from a disk file) in a form comprising a plurality of
`sequential media data elements, which are identified by serial
`identifiers,
`
` programming the servers to receive requests from user systems for
`media data elements corresponding to serial identifiers specified in
`the requests,
`
` programming the servers to send the media data elements responsive
`to the user requests, with the result that the streaming media
`contained in the media data elements are sent to the user at a rate
`more rapid than its playback rate,
`
` with knowledge of the’141 patent at least since Plaintiff’s notice
`thereof to Defendants (as recited in Par. 41), inducing the user to use
`media player software for receiving streaming media from
`Defendants’ specially programmed servers, and for playing the
`streaming media so received, wherein the media player software
`maintains a record of the identifier of the last data element that has
`been received, and transmits to the server requests to send one or
`more data elements, specifying the identifier of the data elements, as
`
`
`
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`
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`required by the media player software to maintain a sufficient
`number of media data elements in the media player software for
`uninterrupted playback.
`
`Defendants are liable for their infringement of the ’141 patent pursuant to 35 U.S.C.
`
`12
`
`§§ 271(a)-(c).
`
`34. Defendants’ acts of infringement have caused and are continuing to cause
`
`damage to Plaintiff, and Plaintiff is entitled to recover from Defendants the damages
`
`sustained by Plaintiff as a result of Defendants’ infringing acts in an amount subject
`
`to proof at trial.
`
`35. Defendants’ widespread infringement has injured Plaintiff’s ability to
`
`expand its operations based on its patented technology. Plaintiff’s remedy in
`
`damages for such continuing infringing activity is inadequate to fully compensate
`
`Plaintiff for the invasion of its exclusive rights, and Plaintiff is entitled to an
`
`injunction to protect its business against such continuing infringement.
`
`COUNT II: INFRINGEMENT OF THE ’011 PATENT
`
`36. Plaintiff repeats and realleges the allegations of paragraphs 1-35 above
`
`as if fully set forth at length herein.
`
`37. Defendants have and are continuing to contributorily infringe and induce
`
`infringement of claims 1-4 the ’011 patent by their manufacture, distribution, use,
`
`sale, and/or offer for sale of software components, systems, and services specially
`
`adapted to be used in conjunction with browsers and/or media players that infringe
`
`the ‘011 patent, wherein the browsers and/or media players:
`
` request from Defendants’ servers a predetermined number of media
`data elements, requesting the elements by serial identifier,
`
`
`
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`13
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`
`
` receive media data elements sent to by Defendants’ servers
`responsive to said requests,
`
`
`
`implement a buffer manager to store media data elements received
`from Defendants’ servers and maintain a record of the serial number
`of the last media data element received,
`
` play the media data elements sequentially from the buffer,
`
` repeat such requests so as to maintain a pre-determined number of
`media data elements in the buffer.
`
`Defendants’ said server components, systems, and services are specifically adapted
`
`to work with, and require, browsers and/or media players configured in an
`
`infringing manner as aforesaid, in order for Defendants’ steaming media delivery to
`
`operate. Defendants, having knowledge of the ‘011 patent at least since Plaintiffs’
`
`notice thereof to defendants (as recited in Par. 41), thereby induce the users of said
`
`browsers and/or media players to infringe the ‘011 patent, and contribute to such
`
`infringement. Defendants are liable for their infringement of the ’011 patent
`
`pursuant to 35 U.S.C. §§ 271(b)-(c).
`
`38. Defendants’ acts of infringement have caused and are continuing to cause
`
`damage to Plaintiff, and Plaintiff is entitled to recover from Defendants the damages
`
`sustained by Plaintiff as a result of Defendants’ infringing acts in an amount subject
`
`to proof at trial.
`
`39. Defendants’ widespread infringement has injured Plaintiff’s ability to
`
`expand its operations based on its patented technology. Plaintiff’s remedy in
`
`damages for such continuing infringing activity is inadequate to fully compensate
`
`Plaintiff for the invasion of its exclusive rights, and Plaintiff is entitled to an
`
`injunction to protect its business against such continuing infringement.
`
`
`
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`
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`COUNT III: WILLFUL INFRINGEMENT
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`14
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`40. Plaintiff repeats and realleges the allegations of paragraphs 1-39 above
`
`as if fully set forth at length herein.
`
`41. The filing of this action for infringement constitutes notice to Defendants
`
`of such infringement, pursuant to 35 U.S.C. § 287. Defendants were also
`
`simultaneously notified of their infringement by letters sent to their business
`
`addresses. At least upon receipt of such notices Defendants should have understood
`
`that there was an objectively high likelihood that their actions thereafter
`
`constituted, and were inducing and contributing to, patent infringement.
`
`42. Defendants’ continued infringement at least after such notice is willful
`
`and deliberate, entitling Plaintiff to increased damages under 35 U.S.C. § 284 and to
`
`attorneys’ fees and costs incurred in prosecuting this action under 35 U.S.C. § 285.
`
`DEMAND FOR JURY TRIAL
`
`43. Plaintiff demands trial by jury on all issues.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff WAG ACQUISITION, L.L.C. requests an entry of
`
`judgment in its favor and against Defendants as follows:
`
`a) Declaration that Defendants have each infringed United States Patent Nos.
`
`8,122,141 and 8,327,011;
`
`b) Declaration that each of Defendants’ infringement has been willful, and
`
`awarding enhanced damages and fees as a result of that willfulness under 35 U.S.C.
`
`§ 284, jointly and severally against the Defendants;
`
`
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`15
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`
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`c) Permanently enjoining Defendants, their officers, directors, employees,
`
`agents, and all those in concert and participation with them from continued
`
`infringement of infringed United States Patent Nos. 8,122,141 and 8,327,011;
`
`d) Awarding the past and future damages arising out of Defendants’
`
`infringement of United States Patent Nos. 8,122,141 and 8,327,011 to Plaintiff,
`
`together with prejudgment and post-judgment interest, in an amount according to
`
`proof, jointly and severally against the Defendants;
`
`e) Awarding attorneys’ fees, costs, or other damages pursuant to 35 U.S.C. §§
`
`284 or 285 or as otherwise permitted by law, jointly and severally against the
`
`Defendants; and
`
`f) For such other costs and further relief as the Court may deem just and
`
`proper.
`
`Dated: April 11, 2014
`
`RONALD ABRAMSON
`DAVID G. LISTON
`LEWIS BAACH PLLC
`The Chrysler Building
`405 Lexington Avenue
`New York, NY 10174
`
`
`By: s/ Ronald Abramson
`
`Ronald Abramson
`Tel: (212) 822-0163
`
`
`By: s/ David G. Liston
`
`David G. Liston
`Tel: (212) 822-0160
`
`Attorneys for Plaintiff
`
`
`
`
`
`