Case 2:14-cv-02340-ES-MAH Document 24 Filed 06/02/14 Page 1 of 17 PageID: 108
`
`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
`
`
`
`
`
`WAG ACQUISITION, L.L.C.,
`
` Plaintiff,
`
`v.
`
`MULTI MEDIA, LLC, et al.,
`
` Defendants.
`
`
`
`
`
`
`
`
`Case No.: 2:14-cv-2340-ES-JAD
`
`
`
`FIRST AMENDED COMPLAINT
`AND DEMAND FOR JURY TRIAL
`
`
`Plaintiff WAG ACQUISITION, L.L.C., for its first amended 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’ Internet delivery
`
`of live adult video web cam performances infringes the patents-in-suit, as more
`
`particularly specified herein.
`
`
`
`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
`
`
`
`
`
`WAG ACQUISITION, L.L.C.,
`
` Plaintiff,
`
`v.
`
`MULTI MEDIA, LLC, et al.,
`
` Defendants.
`
`
`
`
`
`
`
`
`Case No.: 2:14-cv-2340-ES-JAD
`
`
`
`FIRST AMENDED COMPLAINT
`AND DEMAND FOR JURY TRIAL
`
`
`Plaintiff WAG ACQUISITION, L.L.C., for its first amended 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’ Internet delivery
`
`of live adult video web cam performances infringes the patents-in-suit, as more
`
`particularly specified herein.
`
`
`
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`2
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`
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`THE PARTIES
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`1.
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`Plaintiff WAG Acquisition, L.L.C. is a New Jersey limited liability
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`company with its principal place of business at 3 Gold Mine Road, Suite 104,
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`Flanders, New Jersey 07836.
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`2. On information and belief, Defendant MULTI MEDIA, LLC (“MMLLC”) is
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`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,
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`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.
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`3. On information and belief, Defendants DOE 1 – DOE 20 are entities
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`whose precise identities are unknown to Plaintiff at this time, which operate in
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`concert with Defendant MMLLC in connection with the conduct complained of
`
`herein. Plaintiff believes that information obtained in discovery will lead to
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`identification of each such Defendant’s true identity and permit Plaintiff to amend
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`this complaint to state the same.
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`JURISDICTION AND VENUE
`
`4.
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`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.
`
`5.
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`Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)-(c) and
`
`1400(b).
`
`
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`3
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`PLAINTIFF’S BUSINESS AND DEVELOPMENTS
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`6.
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`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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`7.
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`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 the then current Internet streaming technologies. They observed that long
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`startup delays due to “buffering” and frequent program interruptions (sometimes
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`referred to as “jitter”) made the experience of trying to listen to or view streaming
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`Internet content frustrating to the end user, and therefore impractical as a content
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`delivery mechanism. They were interested in making the Internet streaming
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`experience more like radio or television, including the immediacy of having the
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`programming appear to start instantly on demand (e.g., turning on a radio or
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`flipping channels), and continue playing once started without random interruptions.
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`8.
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`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 then current technology, with respect to streaming media
`
`playback performance, as well as other technological issues concerning Internet
`
`delivery of broadcast media. Price worked on several aspects of this matter for
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`Plaintiff over the period 1999-2001.
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`
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`4
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`9.
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`Price was aware of the then current approach to streaming, which
`
`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.,
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`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.
`
`10. Price conceived of solutions to these problems. He built a prototype
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`that implemented one embodiment of those solutions, and he demonstrated that a
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`system according to his new design could overcome the problems put to him by
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`Grywalski and Emerson.
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`11. 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.
`
`12. Plaintiff has been conducting an active, operating business ever since
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`the developments described above, and has actively practiced technology taught in
`
`the patents-in-suit, from then to the present. Plaintiff has developed commercial
`
`
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`5
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`
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`arrangements under which it streams content for numerous terrestrial radio
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`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
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`performing rights organization that collects royalties on the behalf of sound
`
`recording copyright owners ), among other services.
`
`DEFENDANTS’ BUSINESS ACTIVITIES
`
`13. Defendants operate a series of sexually explicit, pornographic web sites,
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`featuring live, interactive webcam performances by users and “models.”
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`Defendants’ flagship site is chaturbate.com. (References herein to “Chaturbate” or
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`“chaturbate.com” include reference to related and affiliated web sites operated by
`
`Defendant MMLLC and/or Doe Defendants.)
`
`14. Defendants recruit users and models and take live feeds from their
`
`individual web cams, over the Internet, for redistribution through Defendants’
`
`servers. Users can selectively view any of the individual streams through an
`
`interface that also provides an interactive “chat” window. Through the chat
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`interface, a user can chat with other users and models, and request performances
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`and “private sessions.”
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`15. The currency used on Chaturbate to pay and tip for services consists of
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`“tokens” purchased from Defendants via credit card. The chat windows provided on
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`the Chaturbate web site provide mechanisms to buy, pay, and tip with tokens.
`
`Defendants derive substantial revenue from the money that users spend for tokens
`
`on the Chaturbate site.
`
`
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`6
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`16. On information and belief, Defendants have recruited a large number of
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`webcam performers in the U.S., Western and Eastern Europe, and elsewhere, to
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`form an online pornography enterprise of national and international scope.
`
`Defendants’ worldwide retinue of performers includes New Jersey residents, who
`
`perform online over Defendants’ infringing services, from New Jersey, using server
`
`facilities provided by Defendants. Defendants also regularly make business visits to
`
`New Jersey and sponsor events in New Jersey to recruit models and promote
`
`Defendants’ online services.
`
`17. Defendants’ servers include servers in the United States, under
`
`Defendants’ ownership and control, configured to receive live streams from user
`
`and model webcams, and to stream Defendants’ live webcam performances and
`
`other video streams over a variety of delivery technologies to diverse user
`
`equipment, including, inter alia, desktop computers and mobile devices (collectively
`
`referred to herein as “Players”).
`
`18. 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 high
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`volume pornography sites (frequently “Tube” (Youtube-style) sites offering short,
`
`low-quality, prerecorded clips on a free basis), provide a paid, revenue-generating
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`webcam adjunct service under the Tube site provider’s own branding. The live
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`webcam Affiliate site will appear to the user of the Tube site as a click-through site,
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`or in a window that pops over the Tube site. Though branded and decorated to look
`
`
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`
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`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
`
`7
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`Defendants’ Affiliate program.
`
`19. Defendants aggressively market their live webcam services to a
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`worldwide audience, including, on information and belief, a substantial volume of
`
`users in this District, from which defendants derive substantial revenues.
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`20. 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. 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.
`
`21. Success in Defendants’ business depends on the technological capability
`
`to deliver streaming media content in a responsive, smooth, and scalable manner,
`
`such as 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.
`
`THE PATENTS-IN-SUIT
`
`22. 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.
`
`
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`8
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`23. 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.
`
`24. The ’141 and ’011 patents cover a server and corresponding software
`
`(“Player Software”) for sending and receiving requests for streaming video. These
`
`patents claim mechanisms whereby, (a) the server receives streaming media from a
`
`live or disk-based source, and processes streams for delivery by breaking them up
`
`into serially identified data elements; (b) the Player requests the streaming data
`
`elements by the identifiers assigned by the server, keeping track of the last data
`
`element received, and (c) the server sends the requested streaming data elements to
`
`the Player at high speed (faster than the rate at which the data is played back), and
`
`the Player renders the stream.
`
`25. The individual claims of the ’141 and ’011 patents relate to
`
`(i) Server apparatus, and software executed completely on the server
`
`apparatus (claims 10-18 and 19-23 of the ’141 patent);
`
`(ii) Player apparatus, including Player Software, which implements
`
`the claimed functionality of the Player apparatus (claims 24-27 of
`
`the ’141 patent, and claims 1-4 of the ’011 patent); and
`
`(iii) The use of server apparatus in combination with Player Software,
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`to effect streaming video distribution in a specified manner
`
`(claims 1-9 and 28 of the ’141 patent).
`
`
`
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`9
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`26. Pursuant to 35 U.S.C. § 287(a), Defendants have had notice of the
`
`patents-in-suit and of their infringement thereof since at least April 11, 2014, the
`
`date this action was filed. On the same date, Plaintiff, by its undersigned counsel,
`
`sent a letter (the “Demand Letter”) to Defendant MMLLC, , which Defendant MMLLC
`
`received shortly thereafter, also providing notice of Plaintiff’s patents and
`
`Defendants’ infringement.
`
`DEFENDANTS’ INFRINGING OPERATIONS
`
`27. The following describes, by way of example, and not of limitation, one
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`mode of infringement practiced by Defendants, which Plaintiff alleges constitutes
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`direct and indirect infringement (active inducement of infringement) of the patents-
`
`in-suit.
`
`28. Plaintiffs operate, and for a considerable time have operated, servers
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`for streaming live video performances over the Internet. Such servers function to
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`process and serve live streams, received by the servers from performers’ web cams,
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`to users who wish to view the streams and interact with performers in real time.
`
`29.
`
`In performing these functions, such servers (a) process the stream to
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`adapt it for delivery in the form of serially identified media data elements, by
`
`assigning serial identifiers to the sequential media data elements comprising the
`
`stream, and (b) serve, at high speed, the serially identified media data elements
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`responsive to requests received from Players.
`
`30. Defendants’ servers, which provide streams in the form of sequential
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`media data elements identified by serial identifiers, are especially adapted to work
`
`with Players specifically configured to request and receive such streams. Such
`
`
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`
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`Players operate by requesting a stream by its constituent elements, by the serial
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`identifiers assigned to the elements, and by keeping track of the last media data
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`element that the Player has received so it can request the proper next data element.
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`Such functions are implemented by the Player Software loaded and executed by the
`
`10
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`Players.
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`31. Defendants’ servers direct and control the users’ Players, causing the
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`Players to load and execute the Player Software. Defendants’ servers read encoded
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`information in network packets received from Players, identifying the type of Player
`
`that sent the packet. In the case of Players so identified as compatible with such
`
`servers, Defendants’ servers send such Players electronic instructions that cause the
`
`Players, without any user intervention, to load and execute the Player Software, so
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`that the Player may request and receive the serialized streaming transmissions from
`
`Defendants’ servers. Defendants’ servers also send electronic data to the Players
`
`containing the serial identifiers used by the Players to request streaming media
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`elements, thereby further controlling the operation of the Players.
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`32. Defendants encourage users to use such Players by making available
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`streams especially adapted to be played only on such Players, and by providing
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`instructions on their web site recommending that users use such Players to interact
`
`with Defendants’ services.
`
`33. Defendants’ delivery of live streaming media infringes the patents-in-
`
`suit (i) directly, under 35 U.S.C. § 271(a), and (ii) by inducing infringement under 35
`
`U.S.C. § 271(b).
`
`
`
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`
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`COUNT I: DIRECT INFRINGEMENT OF THE ’141 AND ’011 PATENTS
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`34. Plaintiff repeats and realleges the allegations of paragraphs 1-33 above
`
`11
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`as if fully set forth at length herein.
`
`35. 35 U.S.C. § 271(a) provides in pertinent part as follows:
`
`“(a) . . . whoever without authority makes, uses, offers to sell, or sells
`any patented invention, within the United States or imports into the
`United States any patented invention during the term of the patent
`therefor, infringes the patent.”
`
`36. Defendants have infringed and are still infringing the ’141 and ’011
`
`patents by making, selling, offering to sell, performing, and using apparatus and
`
`methods that embody the claims of each of said patents. Defendants do so by
`
`practicing and/or directing and controlling the performance and/or use of each and
`
`every element of such claims.
`
`37.
`
`In addition, and in the alternative, Defendants directly infringe claims 1-
`
`8 and 28 of the ’141 patent under 35 U.S.C. § 271(a) by Defendants’ acts combined
`
`with those of its users, with knowledge that each step of said patented methods will
`
`be performed through their combined action.
`
`38. Pursuant to 35 U.S.C. §284, Plaintiff is entitled to not less than a
`
`reasonable royalty for the use made of said inventions by the Defendants, together
`
`with interest and costs as fixed by the Court.
`
`39. Plaintiff is entitled to recover from Defendants the past and continuing
`
`damages so sustained by Plaintiff as a result of Defendants’ acts of direct
`
`infringement as aforesaid, in an amount subject to proof at trial.
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`
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`COUNT II: INDUCED INFRINGEMENT OF THE ’141 AND ’011 PATENTS
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`40. Plaintiff repeats and realleges the allegations of paragraphs 1-39 above
`
`12
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`as if fully set forth at length herein.
`
`41. 35 U.S.C. § 271(b) provides:
`
`“Whoever actively induces infringement of a patent shall be liable as
`an infringer.”
`
`42.
`
`In addition and in the alternative to Plaintiff’s allegations under Counts
`
`I and III, Defendants actively induce infringement, by users, of claims 24-27 of the
`
`’141 patent, and claims 1-4 of the ’011 patent.
`
`43. Defendants induce such infringement by recommending that users use
`
`Players adapted to interoperate with their servers and infringe said claims.
`
`44. Defendants further induce infringement by providing streams in a
`
`manner especially adapted to be viewed only on compatible Players. Defendants’
`
`servers provide such streams when they identify that the user is using a compatible
`
`Player, providing a user experience that further induces the user to use such
`
`Players. Defendants’ servers send electronic instructions causing the Players to load
`
`and execute compatible Player Software and electronic data containing the serial
`
`identifiers for the Players to use to request sequential media data elements.
`
`45. The users of such Players are thereby induced by Defendants to directly
`
`infringe claims 24-27 of the ’141 patent and claims 1-4 of the ’011 patent (e.g., by
`
`using Players and Player Software within the scope of said claims, whereby said
`
`users directly infringe such claims).
`
`
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`13
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`46. Since at least April 11, 2014 and/or their receipt of the Demand Letter,
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`Defendants’ acts of inducing users to infringe the above-specified claims of ’141 and
`
`’011 patents have been committed, and continue to be committed, with knowledge
`
`of the ’141 and ’011 patents and specific intent that users infringe said patents,
`
`knowing that the users’ acts constitute infringement.
`
`47. Pursuant to 35 U.S.C. §284, Plaintiff is entitled to not less than a
`
`reasonable royalty for the use made of the invention by the Defendants, since at
`
`least April 11, 2014 and/or their receipt of the Demand Letter, by way of induced
`
`infringement as aforesaid under claims 24-27 of the ’141 patent, and claims 1-4 of
`
`the ’011 patent, together with interest and costs as fixed by the Court.
`
`48. Plaintiff is entitled to recover from Defendants for the damages so
`
`sustained by Plaintiff as a result of Defendants’ infringing acts, in an amount subject
`
`to proof at trial.
`
`COUNT III: WILLFUL INFRINGEMENT
`
`49. Plaintiff repeats and realleges the allegations of paragraphs 1-48 above
`
`as if fully set forth at length herein.
`
`50. 35 U.S.C. § 284 provides in pertinent part as follows:
`
`“When the damages are not found by a jury, the court shall assess
`them. In either event the court may increase the damages up to three
`times the amount found or assessed.”
`
`51. 35 U.S.C. § 285 provides as follows:
`
`“The court in exceptional cases may award reasonable attorney fees
`to the prevailing party.”
`
`
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`52. The filing of this action for infringement on April 11, 2014 constituted
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`notice to Defendants of such infringement, pursuant to 35 U.S.C. § 287. At or about
`
`the same time, Defendant MMLLC was also notified of infringement by the Demand
`
`Letter. From at least such time, Defendants should have known of Plaintiff’s patents,
`
`understood the allegations of direct and indirect infringement against them,
`
`involving their acts and those of their users, known that their and their users’ acts
`
`constitute infringement and specifically intended that the users infringe said
`
`patents. Defendants should have been aware at least from such time that there was
`
`an objectively high likelihood that their actions thereafter constituted, and were
`
`inducing, patent infringement. Defendants have no good faith basis to believe that
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`their continuing conduct as alleged herein does not constitute patent infringement.
`
`53. Defendants’ continued infringement since at least the filing of this
`
`action and/or their receipt of the Demand Letter is willful and deliberate, entitling
`
`Plaintiff to increased damages under 35 U.S.C. § 284.
`
`54. Defendants’ continued infringement since at least the filing of this
`
`action and/or their receipt of the Demand Letter, without a good faith basis to
`
`believe that such conduct is not infringing, renders this an extraordinary case under
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`35 U.S.C. § 285, which entitles Plaintiff to an award of reasonable attorneys’ fees.
`
`55. Plaintiff does not compete with Defendants and does not currently
`
`practice the claims alleged herein to be infringed, and accordingly does not have an
`
`adequate preliminary injunctive remedy to prevent ongoing infringement, including
`
`willful infringement, by the Defendants. Accordingly, Plaintiff is entitled to seek
`
`
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`
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`enhanced damages for continuing willful infringement even if Defendants had no
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`knowledge of Plaintiffs’ patents prior to the filing of the complaint.
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`15
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`DEMAND FOR JURY TRIAL
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`56. 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) Declaring that each of the Defendants has and/or continues to directly
`
`infringe and induce infringement of one of more claims of United States Patent Nos.
`
`8,122,141 and 8,327,011;
`
`b) Declaring that each of Defendants’ infringement has been willful, and
`
`awarding enhanced damages at least from the filing of this action and/or receipt of
`
`the Demand Letter as a result of that willfulness under 35 U.S.C. § 284, jointly and
`
`severally against the Defendants;
`
`c) Awarding the past and continuing damages arising out of Defendants’
`
`direct infringement of United States Patent Nos. 8,122,141 and 8,327,011 and
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`damages at least from the filing of this action and/or receipt of the Demand Letter
`
`for Defendants’ indirect infringement as alleged herein, to Plaintiff, together with
`
`prejudgment and post-judgment interest, in an amount according to proof, jointly
`
`and severally against the Defendants;
`
`
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`
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`d) 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
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`16
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`Defendants;
`
`e) Upon the final judgment of infringement herein, entering an order,
`
`pursuant to 35 U.S.C. § 283, permanently enjoining and restraining Defendants and
`
`their respective officers, directors, principals, agents, servants, employees,
`
`successors and assigns, and all those in active concert or participation with each of
`
`the foregoing, from infringing and/or inducing the infringement of, any claims of
`
`United States Patent Nos. 8,122,141 and 8,327,011;
`
`f) Awarding costs in this action to Plaintiff; and
`
`g) For such other and further relief as the Court may deem just and proper.
`
`Dated: June 2, 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
`
`
`
`
`
`
`
`Case 2:14-cv-02340-ES-MAH Document 24 Filed 06/02/14 Page 17 of 17 PageID: 124
`
`
`
`CERTIFICATE OF SERVICE
`
`On this 2nd day of June, 2014, I certify that I served upon counsel for
`
`Defendant Multi Media LLC a copy of the foregoing First Amended Complaint via the
`
`17
`
`Court’s ECF filing system.
`
`Dated: June 2, 2014
`
`s/ Ronald Abramson
`Ronald Abramson
`LEWIS BAACH pllc
`The Chrysler Building
`405 Lexington Avenue
`New York, NY 10174
`Tel: (212) 826-7001
`
`
`
`
`
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