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JS 44C/SDNY
REV. 4/2014
CIVILCOVER SHEET
The
JS 44 civif cover sheet and the information
contained herein
nejUjer
pleadings
or
other papers as
required
bylaw/_fcept a__rovided _Ti
Judicial
Conference
oftheUnited
States
in
Se_krnb_r_74
is
reSired
initiatingthe civildocket sheet.
ice
nor
suppler
of court. Thii
se
o f
th e
Clerk
th e
NOV 05 U
PLAINTIFFS
INSTITUTIONAL INVESTOR, LLC
ATTORNEYS(FIRM
NAME,
ADDRESS, ANDTELEPHONE NUMBER
Thomas
M.
Lancia
PLLC
22
Cortlandt
Street,
16th
Floor
New York, New York 10007
212-964-3157
D
CAUSE
OF
ACTION CITE THE
U.S. CIVIL
STATUTE UNDER WHICH YOU ARE FILING AND WRITE
A
BRIEF STATEMENT
OF CAUSB
DO NOT
CITE
JURISDICTIONAL STATUTES UNLESS
DIVERSITY)
17
U.S.C.
501
etseq. Cause
of
action
stems from Defendants
violation
of Plaintiff s copyright
in online
published articles
DEFENDANTS
BEECHER CARLSON HOLDINGS, INC.and
TIMOTHY VICCARI
ATTORNEYS(IF
KNOWN)
Has this
action, case, or proceeding, or one
essentially
the same
been
previously filed
in
SDNY at any
time? N
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PLACEAN x INONEBOXONLY
ORIGIN
1 1
1
Original
U 2 Removed
from
Lj 3 Remanded D 4 Reinstated or __ 5
Transferred from
Q 6 Multidistrict
Proceeding State Court from Reopened
Specify
District Litigation
a.
allparttesnpnMntod
Appellate
L~J Court
(_] b. Atleast
one
party
Uprose .
PLACEAN
XINONEBOXONLY
BAS|SOF
JURISDICTION
D 1 U.S. PLAINTIFF Q2 U.S. DEFENDANT __ 3 FEDERAL QUESTION
Q4
DIVERSITY
(U.S. NOTA PARTY)
t~l 7
Appeal
toDistrict
Judge
from
Magistrate
Judge
Judgment
IFDIVERSITY
INDI TE
CITIZENSHIP
ELOW
CITIZENSHIP
OF PRINCIPAL PARTIES
FOR
DIVERSITY
CASES
ONLY)
(Place an [X] inone boxfor
Plaintiff
and one box for Defendant)
PT F
DE F
CITIZENOF THIS STATE [ ] 1 [ ] 1
CITIZEN OF ANOTHERSTATE [ ] 2 [ ] 2
CITIZEN
OR SUBJECT OF A
FOREIGN COUNTRY
PT F
DE F
[ ] 3 [ ] 3
PTF DEF
INCORPORATEDand
PRINCIPAL
PLACE [ ] 5 [ ] 5
OF BUSINESS IN ANOTHERSTATE
INCORPORATED or
PRINCIPAL PLACE
[ ] 4 [ ] 4
OF
BUSINESS IN
THISSTATE
FOREIGN NATION
PLAINTIFF S) ADDRESS(ES)
AND
COUNTY IES)
Institutional Investor, LLC
2 25 P ar k
Avenue Sout h
New
York,
New
York 10003
DEFENDANT S) ADDRESS(ES)AND COUNTY IES)
Beecher Carlson Holdings, Inc
120
West 45th
Street, 30th Floor
New
York,
New
York 10036
Timothy Viccari
120 West 45th
Street, 30th Floor
New York, New York
10036
[ ]6
[ ]6
DEFENDANT(S)
ADDRESS
UNKNOWN
REPRESENTATION IS
HEREBY
MADE
THAT, ATTHISTIME, I HAVE BEEN UNABLE,
WITH
REASONABLE DILIGENCE, TOASCERTAIN
RESIBENCE ADDRESSES
OF
THE
FOLLOWING DEFENDANTS:
Check
one:
THIS
ACTION SHOULD BE ASSIGNED
TO:
WHITE PLAINS __ MANHATTAN
(DO
NOTj*ectre^ner
box ifthis a PRISONER PETJTION/PRISONER
CIVIL
RIGHTS
CON
ADMITTED TO
PRACTICE
IN
THIS
DISTRICT
[ ]
NO
/ O 1
M
YES
DATE ADMITTED Mo.
_
Yr
7.A-
Magistrate Judge is to be designated by the Clerk of the Coi
Magistrate Judge
Attorney Bar Code # J2 /V(f_)
mjm m
is so Designated.
Ruby J.
Krajick,
Clerk of Court by
Deputy Clerk, DATED.
UNITED
STATES DISTRICT COURT(NEWYORKSOUTHERN)
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4 CV
88 9
Thomas
M.
Lancia
PLLC
By: Thomas M. Lancia, Esq.
22 Cort landt S t ree t
16th
Floor
New
York,
New
York 10007
212.964.3157
UNITED STATES D ISTRICT
COURT
SOUTHERN DISTRICT
OF
NEW YORK
INSTITUTIONAL
INVESTOR,
LLC
Plaintiff,
BEECHER CARLSON HOLDINGS, INC. and
TIMOTHY VICCARI
Defendants.
X
X
S
COMPLAINT
Jury Trial Demanded
CO
o
o
CO
:5
0
14
CIV.
-r,
-::a
Plaintiff INSTITUTIONAL INVESTOR, LLC ( II or
Plaintiff),
by its attorneys,
Thomas M. Lancia PLLC, brings this civil action against Defendants BEECHER CARLSON
HOLDINGS, INC ( Beecher ) and TIMOTHY VICCARI ( Viccari ) (collectively
Defendants ) and complains as follows:
PART IES AND
JURISDICTION
1. By this Complaint, II seeks statutory damages, actual damages, compensatory
damages, treble damages, punitive and exemplary damages, injunctive relief, and their attorneys'
fees and costs pursuant to the Copyright Act, 17 U.S.C. 501
et seq
breach
of
contract, fraud
and deceit, and misappropriation
of
confidential business information and/or trade secrets.
II is a Delaware limited liability company with its principal place
of
business at
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225 Park Avenue South,
New
York,
New
York 10003. Beecher is a Delaware Corporation with
its corporate
offices
in
Atlanta, Georgia and
an
office
at 120 West
45th Street,
30th Floor, New
York, New York 10036. Viccari was at all pertinent times an employee ofBeecher.
3. Pursuant to 28 U.S.C. 1331 and 1338(a), the Court has subject matter
jurisdiction over the
Plaintiffs
claims for copyright infringement, brought under the Copyright
Act, 28 U.S.C. 501 et seq ; The Court has supplemental jur isdict ion over the Plaintiffs
remaining claims pursuant to 28 U.S.C. 1338(b) and 1367.
4. In its license agreement with Plaintiff, Defendants consented to the exercise of
personal jurisdiction by this Court.
5. Additionally, upon information and belief, this Court has personal jurisdiction
over Defendants because it (a) purposefully directs activities towards the state of New York,
including financial trading; (b) regularly conducts and solicits business in the state
of
New York;
(c) derives substantial revenues from goods and/or services provided to customers in the state
of
New York; and/or (d) regularly and purposefully accessed
Plaintiffs
servers located in
New
York.
6. Venue is proper in this Court pursuant to, interalia 28 U.S.C. 1400(a).
FACTUAL BACKGROUND
7. Euromoney Institutional Investor PLC ( Euromoney ) is one
of
Europe's largest
business and financial magazine publishers, delivering business information to various sectors,
including finance, law, and energy, for over thirty-five years. Euromoney publishes print and
online magazines, journals, and newsletters among other things. II is the United States
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subsidiary
of
Euromoney. II owns copyrights in both
of
its print and online editions
of
publications, journals, ebooks and the like. Publications are registered with the Untied States
Copyright Office and regularly updated. Among those online publications is a series of
sophisticated, timely, unique and highly coveted niche market e-magazines provided under the
rubric II Intelligence. Though anyone can purchase them, these e-magazines are not usually
marketed to the general public but rather are frequently purchased by fund managers, compliance
officers and other business executives. Within II Intelligence, there are several niche market
online publications, such as Money Management Intelligence, Foundations and Endowments,
Compliance Intelligence, Real Estate Intelligence, Fund Industry Intelligence and so on. In each
of
these areas, II delivers clearly organized and customized content, including news, data and
features, quickly but carefully developed at substantial cost to II, addressing the subscribers'
need for timely and pertinent information to stay abreast
of
the market. Subscribers, including
some of the most prominent governmental and financial institutions in the United States,
recognize the considerable benefit reaped from these online publications and are generally
content to pay a commensurate fee for it.
8. Within Institutional Investor Intelligence lies Power Intelligence, an exclusive
daily information service focused on the power industry, providing updated news, features,
analysisand data, includingproject finance in generation, transmissionand midstreamgas assets.
Power Intelligence is provided through a password-protected internet website available only to
subscribers ( Website ). Subscribers pay for single or multiple user licenses for a fee to access
t h e content
contained on the
website.
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9. The first time the Website is accessed by a new subscriber, he or she must
affirmatively indicate agreement with the terms and conditions
of
the Website before he or she is
permitted to view the exclusive and unique content. Among those terms and conditions are
provisions pertaining to use. Section 3.2 of the Terms and Conditions expressly states that
[y]ou agree to use the Sites and the Content solely for your own personal use and benefit and
not for resale or other transfer or disposition to any other person or entity. Further, Section 6.4
o f
the
Te rms and Condit ions s ta tes
that:
Except to the extent a user name and password is intended for more than one licensed
user as agreed by us in writing, the following are not permitted:
a) any Registered User, Subscriber or licensed user under any
subscription sharing their user name and password;
(b) access through a single name and password being made
available to multiple users on a network. . .
Finally, Section 3.5 cautions:
If
it is brought to our attention that you have sold, published,
distributed, retransmitted or otherwise provided access to any article(s) from the Content to
anyone without our express prior written permission, we will invoice you for copyright abuse
damages
of
US$1500 per article unless you can show that you have not infringed any copyright,
which will be payable immediately on receipt of the invoice.
10. Despite the terms
of
this license, the Website was used to support the Beecher's
operations well in excess
of
the use authorized by Plaintiff. Indeed, the
Plaintiffs
internet
website logs for Beecher indicate a frequent, repetitive and nearly simultaneous access far in
excess of a typical single user, including numerous occasions when multiple users accessed the
exact same Website materials at nearly the same time.
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11. Plaintiff offers subscriptions to the Website in electronic format, allowing
subscribers to browse and search the Website and its content easily and efficiently. The format
is updated frequently and
new
materials are added on a daily basis. Emails are sent daily
informing the user of the content and the user can save articles or other data in files maintained
and controlled by the Plaintiff for easy access at a later date. Each week, all
of
the articles
posted to the Website during that week are made available to subscribers in one place, as an
electronic newsletter, comprised
of
up to twenty eight (28) pages
of
articles. Subscribers are
able to email articles to other individuals. Print copies are also sent to all subscribers.
12. Every subscriber has a confidential password and identification number unique to
his or her account. The password must be entered manually into the subscriber 's individual
computer terminal, laptop, or mobile device, which then triggers a technological process
providing access to the
Plaintiffs
server by the server accessed by that individual computer
terminal, laptop, or mobile device. The servers in turn usually talk at least in part via satellite.
13. The Website constitutes original material authored, l icensed or purchased by II.
Plaintiff has complied with the copyright laws and is the exclusive owner of the copyrights
therein, including all rights infringed by Defendants.
14. The Register
of
Copyrights has issued Certificates
of
Registration for the Website
and related updates.
15. II regularly monitors the Website using Back Office Administration Tool
( BOAT ) tracking software.
BOAT
tracks every action taken by an individual user s account,
including Website logons and article and page views. This information is contained in an Excel
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spreadsheet containing confidential business information and as such cannot be attached to this
Complaint on the date
of
filing. When unauthorized access is suspected, II employees must sift
through the information and compile it into a format that is readily and easily understood, taking
up employee time at great company expense.
16. On April 1, 2014, when beginning his subscription to the Website, Viccari agreed
affirmatively to the Terms and Conditions for accessing the Website by clicking on the button
indicating as such. At all pertinent times, Viccari was acting within the scope
of
his employment
with Beecher. He paid for a single, one year user license.
17. Despite the agreement by Beecher and Viccari to abide by the Terms and
Conditions, Website logs confirmed that multiple users accessed the Website and exceeded the
number
of
users permitted for the fee paid. These unauthorized users accessed the Website
without au thori za ti on f rom
th e
Plaintiff. Plaintiffs
account
e xe cu tiv e f or V ic ca ri is su ed a
verbal warning on June 1, 2014 and that warning went unheeded.
18. A smattering
of
the numerous abuses
of
the Website and its invaluable content by
Beecher tells the tale of numerous unauthorized users. Infringing conduct occurred in the form
of
multiple and nearly simultaneous Website article views in excess
of
the typical use
of
a single
user. For example, on June 3, 2014, Viccari 's account information was used to visi t the News
channel two distinct times at 21:08, and view DTE Moves To Buy NextEra Wind Farm at
21:08, and then Arclight Tees Up Bayonne Purchase, Refi, DOE Staffer Joins Texas Shop
and PPA Pulse: Wind, Solar Bring Home Contracts all at 21:09. Each one
of
the articles
viewed on that date was printed at 21:09. On June 4, 2014, DTE Moves To Buy NextEra Wind
Farm was viewed again, as were Bay Area Shop Preps For 1st Rated PACE-Backed
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Securitization and Germany EPC Unit Snags Maiden Wind Tax Equity all at 21:49.
Similarly, on June 16, 2014, Viccari's username and password was used to visit the News
channel
three times, twice at 20:53 and another
time
at
21:05.
Three articles were viewed
and
then printed in the same minute, at 21:05 - Exelon Hawks CCGT Pair Separately, Developer
Ropes NADB As Lender To Texas Solar, and Plastina Joins
New
AIG-Backed Outfit. On
July 7, 2014, at 16:24 the Login
New
and News channels were both visited; SoCalEd Sizes Up
Small-Scale Renewable PPA Prospects and The Buzz: Cape Wind Checks Another Box were
viewed at 16:56; at 21:23 Rockland Hawks Eagle Point and Macquarie Unit Buys N.M. Wind
Farm were both viewed and printed; at 21:24 SoCalEd Sizes Up Small-Scale Renewable PPA
Prospects and
PPA
Pulse: Solar Developmers Rake In Offtake Contracts were printed and
viewed and
The
Buzz: Cape Wind Checks Another
Box
was also viewed. There are many
more instances
of
multiple views at nearly the same time from the same server.
19. The activity described above continued through June 2014. For example, on June
5,2014, Viccari 's account was used to log on to the Website, visit both the Login New and News
channels, view ArcLight Lauches Bayonne Refi, DTE Launches Gas-Fired RFP. NRG
Yield Ropes Alta Wind, and
BayWa s
U.S. Unit Snags Maiden Wind Tax Equity, and print
each of those articles, all during a single minute at 21:12; BayWa's U.S. Unit Snags Maiden
Wind Tax Equity was viewed again at 21:22. The next day, June 6, 2014, at 20:51, the account
visited the News channel, viewed Fore Driving Range Trades In For Solar and printed
Broker Offers PTC Insurance To Sidestep Qualification Concerns. Finally, on June 9, 2014,
Beecher employees using Viccari's account logged on to the Website at 14:45 and visited the
Login New and News Channels before viewing Fore Driving Range Trades In For Solar in
the same minute. Then, at 21:57 that day, the articles Details Surface On
EIF s
Neward Gas-
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Fired Deal and Oaktree To Buy Highstar were both viewed and printed, while 11th Annual
Deals & Firms Of The Year Awards was viewed at 21:57 and again at 21:59. The pattern of
behavior was even more obvious on June 20, 2014, when in
just
two minutes, 20:55 and 20:56,
the Login
New
and News channels were visited, and Details Emerge On SunEdison's Silver
Ridge Deal, Goldman Chases Infigen Tax Equity Stakes, TSX-Listed Recycled Energy Shop
Hunts Buyer, Tenaska Inks $450M Solar Financing, and ArcLight Wraps Bayonne TLC,
Cinches Pricing were all viewed and printed. APS Issues RFP To Buy Solar Pair was printed
at 21:43 on June 25, 2014 and SunEdison Buys Solar Portfolio From Boston Developer and
Northwestern Kicks
Off
Montana Renewable
RFP
were both printed at 21:44 that day.
Viccari's account on July 14, 2014 was very active - at 21:13, the Login New and News
channels were visited, Hudson Clean Energy Inks Loan With Resi Solar Shop was viewed
twice and then printed, and AES Nixes Ohio Gen Sale was viewed and printed; Login New
was visited again at 21:15 and Calpine Steps Into Unsecured Debt With $2.8B Issuance was
both viewed and printed; at 21:16 the Login
New
and News channels were both visited; and at
21:17 Hudson Clean Energy Inks Loan With Resi Solar Shop was again viewed and printed.
20. Most obvious, however, is the blatant printing
of
nearly every single article
published on
IPs
Website in between April 1, 2014 and August 1, 2014. During that time
period, articles were printed approximately 185 times. In addition to the printing described
above, on July 21, 2014 alone, eight (8) articles were printed in a span
of
seven minutes - Ex-
Ranger Goalie Debuts Distributed Gen Fund at 20:17 and IRS, Treasury
Aim For
Guidance,
CAISO Preps Transmission RFP. Ex-Ranger Goalie Debuts Distributed Gen Fund, Samsung
Stalks $500M Solar Deal, Solar Shops Find Synergy With Sheep, Q2 League Tables:
MUFG Reclaims Top Slot, Volume
Tanks,
and
Hancock Goes For
More Solar
DG
were all
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printed at 21:24. On June 10, 2014, LS Blueprints Bank Deals To Finance Calpine Acquisition
and PPL, Riverstone To Merge Unregulated Fleets were both printed at 21:51; Funds Pair On
Nautilus
Ontar io Por tfo lio
and B la ckRock
Hi res Ba lchandan i
As U.S. Infra
Team
Grows
were printed at 20:42 on June
12,2014;
on June 17, 2014 Industry Current: Micro-Grids As An
Economic, Resilient Infrastructure and ArcLight Nears Bayonne Commitments were both
printed at 20:52 and at 20:53, Community Solar Shop Launches Portfolio Equity Sale and
Exelon Hawks CCGT Pair Separately were likewise printed.
21. Six (6) different articles were printed at 22:08 on June 24, 2014 - EIF Ink
$590M For Newark, SunEd Pitches Yieldco B Loan, Dominion Adds EDF Solar Project To
Growing Portfolio, Cleco Hires Advisory Pair To Parse Inbound Interest, One If By Sale:
ECP
Shoots
For IPP Exit, and Creditors
Put
AES Eastern Remnants On Mart. On June 26,
2014 both REFF Wall Street: Developers
Look
To Squeeze Project Costs and REFF Wall
Street: Sparse Capital Dogs Middle Market were printed at 21:55. The next day at 21:55,
Exelon Takes Quail Run Bids, Atlantic Power Process Shaped By Uncertainty and Yieldco
Hype Masks Uncharted Future were all printed. July saw the same type
of
unauthorized
printing by Beecher employees using Viccari 's account. On July 1, 2014, Cape Wine Snags
Conditional Loan Guarantee, SunEdison Tightens TerraForm Pricing, and Babson Lands
UBS Banker were all printed at 21:53; on July 11, 2014 Calpine Steps Into Unsecured Debt
With $2.8B Issuance and U.S. Preps 1.45 GW Offshore Wind Lease Auction were printed at
20:37, at 20:38 Q&A: Arno Harris, Recurrent Energy,
Cogan
Snags Power, Utility Remit For
Centerview, and BayWa Wind Unit Hunts Development Acquisit ions were all printed, at
20:39 BlueMountain-Backed Shop Tags Renewable Bigwings was printed and GE EFS
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Invests In Texas Panhandle Wind Pair and Palo Alto Launches
RFP For
Community Solar
Program were both printed at 20:40.
22. The following articles were also printed, among others: Terra-Gen To Buy Small
Wind Pair From Hinckley and LS Preps To Syndicate Acquisition Financing Deals at 20:40
on July 6, 2014; Conergy Nabs Funds To Expand Solar Pipeline,
Optima s
Coal-Fired Plant
Set For Court-Run Sale and SunEdison Raises Yieldco List Price at 21:40 on July 7, 2014;
both Solarcity Tees Up Third Securitization and Starwood Nets Stakes In Texas CCGT Pair
at 21:25 on July
22,2014;
on July
24,2014 NTE
Ropes Heavyweights For Gas-Fired Equity at
22:14 and EIC Dig Into Renewable Projects For First Deal and EDF Buys
111.
Wind Farm
both at 22:15; at 20:50 on July
25,2014
both Gas-Fired Blitz Shapes Near-Term PF Landscape
and The Buzz: Mexican Reform Rolls On; ECP Evaluates Initial EquiPower Bids and
Entegra, Creditors Pitch Pre-Pack both at 21:49 on July 28, 2014. On July 30, 2014 at 14:48
NextEra Stalks Gas Pipeline, Utility Growth, SunPower Lands 2d Financing From Harmon,
and Entegra, Creditors Pitch Pre-Pack [Update] were all printed; Direct Energy Makes Resi
Solar Play, ECP Nabs Waste-To-Energy Co. From Waste management, and
NRG
Yield
Tees Up Bonds To Finance Alta Deal were printed on July
31,2014
at 15:38; finally, on August
1, 2014 at 14:52 the articles Army Issues RFP For Ala. Solar, Duke Utility Sub To Buy
Generation Stakes For $1.2B; and Dominion Chases MLP Listing were printed.
23.
Viccari s
account
was
a ls o u se d t o a cc es s and download several newslet ters even
after printing nearly every single article contained on the Website. The newsletter dated April
14, 2014 was downloaded on that date at 18:49 (6:49 p.m.) while the April 21, 2014 newsletter
was downloaded on April 22, 2014 at 20:04. Other downloaded newsletters include two
downloads of the July 7,2014 newsletter, first on July 7, 2014 at 16:57 and again the next day at
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22:15; the July 14, 2014 newsletter was downloaded on that date at 17:22; on July 21, 2014 at
21:47, the July 21, 2014 was downloaded; and the July 28, 2014 newsletter
was
downloaded at
18:56 on that day.
24. Before a newsletter or any other
pdf
is printed or downloaded from the Website,
the following notice appears as a
pop
up on the computer screen:
This pdf version of Derivatives Intelligence is available to paid subscribers
only. You User ID
and
password are personal to you and sharing of personal
User ID and
password constitutes
a violation
of the terms of your
subscription
. . . Copying of
this
publication is in
violation
of th e Federal
Copyright
law
(17 U.S.C. 101 et seq.).
Violators
shall be subject to criminal
penal ties as well as liability for substantial money damages, including
damages
up
to 100,000
per infringement,
costs
and attorneys
fees...
25. Although this pop up appeared each time an article was printed or downloaded
from the Website by Beecher employees using Viccari 's subscription, this d id not stop the
unauthorized users from regularly printing articles.
26. The type
of
printing done by Beecher 's employees is indicative
of
numerous
unauthorized users. It also tends to show that unauthorized reproduction and distribution
of
the
copyrighted materials was rampant and widespread at Beecher.
AS
A ND FOR
A F IRS T CAUSE OF ACT ION FOR D IRECT COPYR IGHT
I NFR INGEMENT
27. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through
26
of
this Complaint with the same force and effect as
if
set forth fully herein.
28. Notwithstanding the provision of the Copyright Act that the display, distribution
and reproduction
of
copyrighted works may lawfully be made only by the copyright owner or
with its authorization, Defendants have willfully and without Plaintiffs permission infringed
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Plaintiffs copyrights by engaging in the systematic, regular and repeated unauthorized access to
the Website's various pages and the copyrighted articles contained therein.
29. Plaintiff has been irreparably harmed by Defendants' unauthorized reproduction
of
their copyrighted works.
30. In light
of
the foregoing, Plaintiff is entitled to the remedies provided for in 17
U.S.C. 502 etseq
AS A ND FOR A SECOND
CAUSE
OF ACT ION FOR CONTR IBUTORY
COPYR IGHT INFR INGEMENT
31. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through
30 of this Complaint with the same force and effect as
if
set forth fully herein.
32. Individuals using Viccari's personal user identification and password have
directly infringed the Plaintiffs copyrights on a daily basis by, for example, accessing the
copyrighted Website material without authorization and creating unauthorized reproductions by
printing copyrighted articles in violation of Plaintiffs exclusive rights under 17 U.S.C. 106,
501.
33. Defendants are liable as contributory infringers for the copyright infringement
committed via the use of Viccari's subscription information. By sharing this confidential
information, Defendants have caused, enabled, facilitated, and materially contributed to that
infringement.
34. Defendants have actual knowledge
of
infringement. Viccari, after purchasing a
single subscription to the Website in her capacity as a Beecher employee, shared his confidential
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information with other Beecher employees unauthorized to receive this information. Viccari also
printed articles for distribution to other Beecher employees.
35. Through the conduct described above, Defendants are contributorily liable for the
infringement described herein.
36. Defendants' infringementwas willful, intentional, purposeful, and in disregard of
the rights
of
the Plaintiff, and has caused substantial damages to Plaintiff.
37. Plaintiff is therefore entitled to statutory damages and other remedies provided for
in 17U.S.C.
502etseq.
AS
AND FOR
A THIRD
CAUSE
OF
ACTION FOR V ICAR IOUS COPYRIGHT
INFRINGEMENT
38. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through
37
of
this Complaint with the same force and effect as
if
set forth fully herein.
39. Unauthorized Beecher employees using the Website have directly infringed on
Plaintiffs copyright on a regular basis by the above-described conduct in violation of Plaintiffs
exclusive rights under the Copyright Act.
40. Defendants are liable as vicarious infringers for the copyright infringement
committed by the unauthorized use
of
Viccari's confidential subscription information. At all
times relevant to his action, Defendants (i) have had the right and ability to control and/or
supervise the infringing conduct in sharing the Website logon information, and (ii) have had a
direct financial interest in, and derived substantial financial benefit from, the infringement of
Plaintiffs copyrighted articles and other Website materials.
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41. Defendants derived direct benefit from the infringement by gaining access to
information and data that they would otherwise not have had access to. Defendants also avoided
the business costs associated with purchasing the correct number of subscriptions for employees
needing access to the Website and its content.
42. Through the conduct described above, Defendants are vicariously liable for the
infringement
of
Plaintiffs rights.
43. Plaintiff is therefore entitled to statutory damages and other remedies provided for
in 17U.S.C.
502
etseq
N D F OR FOURTH C USE OF CTION F O R R E CH OF CONTR CT
44. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through
43
of
this Complaint with the same force and effect as
if
set forth fully herein.
45. Plaintiff and Defendants entered into a valid and enforceable agreement, under
which Plainti ff provided single-user Internet access to the Website and a limited license for
access by a single Beecher user. Plaintifffurther provided a confidential password to Defendants
and Defendants agreed that access would be limited to one user and not to permit any other
person or entity to use the password to access the site or to use the password to access the site for
anyone else.
46. Defendants breached its agreement with Plaintiff by providing the password to
multiple persons and permitting those persons to use the password to access the Website for
purposes substantially in excess of its license.
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47. Section 3.5 of the Terms and Conditions for accessing the Website clearly states
that unauthorized distribution, display, reproduction or other access results in damages
of
$1,500
for each infringing article. Defendants may have infringed scores of articles resulting in
damages in excess
of
$100,000.
AS
A ND FOR
A FIFTH
CAUSE OF
ACTION
FOR
MISAPPROPRIAT ION OF
T RADE SECRET S
48. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through
47
of
this Complaint with the same force and effect as
if
set forth fully herein.
49. Plaintiff licensed a confidential password to Defendants for use only by a single
user, and that password was an item
of
independent economic value used in
Plaintiffs
businesses to obtain an advantage over those who did know or use it.
50. The confidential password's value is derived from not being generally known to,
and not being readily ascertainable by, other persons who can obtain economic value from
disclosure or use of the password.
51. Without authorization from Plaintiff, Defendants misappropriated the password
and used the password for the benefit of others not permitted to use the password.
52. Defendants' misappropriation
of
Plaintiffs confidential password was willful and
malicious and caused irreparable damage to Plaintiff.
WHEREFORE, II demands judgment in its favor and against Defendants, as follows:
(1) that Defendants and its employees and agents be permanently enjoined from, directly
or indirectly, infringing in any manner any
of
Plaintiffs copyrighted material and from
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disclosing confidential passwords to unauthorized persons and entities, and from inducing,
aiding, causing or materially contributing to such infringement, including the provision
of
confidential passwords to unauthorized users, and from violating the Copyright Act, 17 U.S.C.
501
etseq ;
(2) that Defendants be required to pay Plaintiff statutory damages for every instance in
which Plaintiffs copyright was infringed;
(3) that Defendants be required to pay Plaintifftheir actual damages incurred as the result
of
Defendants' infringement
of
Plaintiff
s copyrights;
(4) that Defendants be required to pay damages (such damages to include lost profits or
Defendants' profits where appropriate), including without limitation treble damages, punitive
damages, and exemplary damages, for misappropriation of trade secrets;
(5) that Defendants be required to pay Pla int iff its direct and consequential damages
incurred as the result
of
Defendants' breach
of
its agreement with Plaintiff;
(6) that Defendants be required to pay liquidated damages in the amount
of
$1,500 per
infringement under the license agreement, in an amount to be determined at trial but believed to
be in
excess
of $100,000;
(7) that Defendants be required to pay Plaintiff its attorneys' fees and other costs of this
action; and
(8) for such other and further reliefas the Court may deem
just
and proper.
Dated:
New
York,
New York
November 5,2014
C
THOMAS
M.
LANCIA PLLC
Attorney for Plaintiff
INSTITUTIONAL
t,LLO-7jv^
Thomas M. Lancia, Esq\
22 Cort landt S tr ee t
16th Floor
New
York,
New
York
10007
212.964.3157
16