institutional investors v. beecher carlson - copyright infringement complaint.pdf

8/10/2019 Institutional Investors v. Beecher Carlson - copyright infringement complaint.pdf

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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


2/18

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)


3/18

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

10


13/18

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

11


14/18

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


30 of this Complaint with the same force and effect as

if


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

12


15/18

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


37

of


if


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.

13


16/18

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


43

of


if


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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17/18

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


47

of


if


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

15


18/18

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

[email protected]

16

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