1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
Total Page：16
File Type：pdf, Size：1020Kb
Case 2:17-cv-08906-DOC-JPR Document 45 Filed 08/27/18 Page 1 of 138 Page ID #:419 1 Douglas Q. Hahn, California Bar No. 257559 [email protected] 2 Salil Bali State Bar No. 263001 3 [email protected] STRADLING YOCCA CARLSON & RAUTH, P.C. 4 660 Newport Center Drive, Suite 1600 5 Newport Beach, CA 92660-6422 Telephone: (949) 725-4000 6 Fax: (949) 725-4100 7 Victor G. Hardy (admitted pro hac vice) 8 [email protected] 9 William M. Parrish (admitted pro hac vice) [email protected] 10 HARDY PARRISH YANG, LLP 11 Spicewood Business Center 12 4412 Spicewood Springs Rd., Suite 202 Austin, Texas 78759 13 Phone: (512)520-9407 14 Attorneys for Plaintiff Preservation Technologies LLC 15 16 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 17 18 PRESERVATION TECHNOLOGIES Civil Action Nos. LLC, 19 Plaintiff, 2:17-cv-08906-DOC-JPR 20 v. FIRST AMENDED COMPLAINT 21 FOR PATENT INFRINGEMENT 22 MINDGEEK USA, INC., MINDGEEK SARL, MG FREESITES LTD., and MG Jury Trial Demanded 23 FREESITE II LTD., 24 25 Defendants. 26 27 28 Case 2:17-cv-08906-DOC-JPR Document 45 Filed 08/27/18 Page 2 of 138 Page ID #:420 1 Plaintiff Preservation Technologies LLC (“Preservation” or “Plaintiff”), by 2 and through its attorneys, for its Complaint against MindGeek USA Inc., 3 MindGeek S.a.r.l., MG Freesites Ltd., and MG Freesite II Ltd. (together, 4 “Defendants”) hereby alleges as follows: 5 I. NATURE OF THE ACTION 6 This is a patent infringement action to end Defendants’ direct, joint, 7 contributory, and/or induced infringement of Plaintiff Preservation’s patented 8 inventions, including but not limited to Defendants’ unauthorized and infringing 9 use, sale, offering for sale, manufacture, and/or importation of methods and 10 products incorporating Plaintiff’s inventions. 11 Preservation has obtained all substantial rights and interest to U.S. 12 Patent No. 5,813,014, U.S. Patent No. 5,832,499, U.S. Patent No. 6,092,080, U.S. 13 Patent No. 6,353,831, U.S. Patent No. 5,832,495, U.S. Patent No. 6,477,537, U.S. 14 Patent No. 6,199,060, U.S. Patent No. 6,212,527, U.S. Patent No. 6,549,911, U.S. 15 Patent No. 6,581,071, and U.S. Patent No. 6,574,638 (collectively, the “Asserted 16 Patents” or “Patents-in-Suit”). 17 Defendants provide, use, put into use, sell, offer for sale, distribute, 18 manufacture, and/or import infringing products and services, and encourage 19 others, including their customers, to use Defendants’ products and services in an 20 infringing manner. 21 Plaintiff Preservation seeks to prevent Defendants from continuing 22 infringement of Plaintiff’s patent rights. Plaintiff further seeks past and future 23 damages and prejudgment and post judgment interest for Defendants’ past 24 infringement of the Asserted Patents. 25 26 -1- 27 FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT 28 Case 2:17-cv-08906-DOC-JPR Document 45 Filed 08/27/18 Page 3 of 138 Page ID #:421 1 II. THE PARTIES 2 A. Plaintiff 3 Plaintiff Preservation Technologies LLC is a limited liability company 4 organized and existing under the laws of the State of Delaware, with its principle 5 place of business located at 903 E. 18th Street, Suite 223, Plano, TX 75074. 6 B. Defendants 7 MindGeek is a business name for the operations conducted by a 8 number of domestic and foreign entities that operate over 100 websites, including 9 Pornhub, YouPorn, Tube8, and XTube (among other sites enumerated in Section 10 VII) and conduct other activities within the United States. MindGeek, among 11 other things, is the largest distributor of free internet porn in the world. Its 12 business model is to provide free internet porn to website visitors in the United 13 States and it makes a large portion of its revenue from advertising from United 14 States companies and subscriptions from website visitors. 15 Upon information and belief, MindGeek USA Inc. (“MindGeek 16 USA”) is a corporation organized and existing under the laws of the State of 17 Delaware, with a place of business located at 23000 West Empire Avenue, 7th 18 Floor, Burbank California 91504. Upon information and belief, MindGeek USA 19 was formerly known as “Manwin USA, Inc.” 20 Upon information and belief, Defendant MindGeek S.a.r.l. is a Société 21 à responsabilité limitée organized and existing under the laws of Luxembourg, 22 with a place of business located at 32 Boulevard Royal, L-2249 Luxembourg 23 City, Luxembourg. Upon information and belief, MindGeek S.a.r.l. was formerly 24 known as “Manwin Licensing International S.a.r.l.” 25 26 -2- 27 FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT 28 Case 2:17-cv-08906-DOC-JPR Document 45 Filed 08/27/18 Page 4 of 138 Page ID #:422 1 Upon information and belief, Defendant MG Freesites Ltd. is a private 2 limited company organized and existing under the laws of the Republic of Cyprus, 3 with a place of business located at 195-197 Old Nicosia-Limassol Road, Block 1 4 Dali Industrial Zone, Cyprus 2540. 5 Upon information and belief, Defendant MG Freesite II Ltd. is a 6 private limited company organized and existing under the laws of the Republic of 7 Cyprus, with a place of business located at 195-197 Old Nicosia-Limassol Road, 8 Block 1 Dali Industrial Zone, Cyprus 2540. 9 Upon information and belief, all defendants other than MindGeek 10 S.a.r.l. are directly or indirectly wholly-owned subsidiaries of MindGeek S.a.r.l. 11 Herein, “MindGeek” or “Defendant(s)” refers to MindGeek USA Inc., MindGeek 12 S.a.r.l., MG Freesites Ltd., MG Freesite II Ltd. and all of their parents, 13 subsidiaries, affiliates and other entities involved in infringing activity. 14 Collectively, MindGeek S.a.r.l. and its network of subsidiaries will be referred to 15 as the “MindGeek Organization,” which upon information and belief consists of 16 over 100 entities incorporated or otherwise organized throughout the world. 17 Individually, the members of the MindGeek will be referred to as a “MindGeek 18 entity” or “Mindgeek Organization.” 19 Upon information and belief, MindGeek S.a.r.l. is the owner of the 20 domain names of the Accused Websites enumerated in Section VII. 21 Upon information and belief, MindGeek S.a.r.l. grants other entities of 22 the MindGeek organization the right to use the domain names and/or operate the 23 domains. 24 25 26 -3- 27 FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT 28 Case 2:17-cv-08906-DOC-JPR Document 45 Filed 08/27/18 Page 5 of 138 Page ID #:423 1 Upon information and belief, the MindGeek Organization operates as 2 a single business enterprise for the purpose of producing, distributing, and 3 monetizing pornography on the Internet. 4 The corporate structure of Defendants and the MindGeek Organiztion 5 and its related entities is not public information. Upon information and belief, 6 MindGeek S.a.r.l. has at least 60 direct subsidiaries.1 Including indirect 7 subsidiaries, the total number of subsidiaries of MindGeek S.a.r.l. is believed to 8 be at least 150. 9 Upon information and belief, the various entities of the MindGeek 10 Organization attempt to hide behind the complex corporate structure of the 11 MindGeek organization in order to evade liability for intellectual property 12 violations. Third parties in court documents have described MindGeek’s prior 13 conduct of using the obscurity and complexity of its corporate structure for 14 purposes of improperly avoiding liabilities for DMCA violations and taxation.2 15 MindGeek S.a.r.l. has the authority to direct that its subsidiaries, including 16 MindGeek USA, make political donations. In 2012, Froytal Services Limited 17 (‘Froytal”), a wholly-owned subsidiary of MindGeek S.a.r.l. incorporated under 18 Cyprus law, made a political contribution of $75,000 to a ballot measure 19 committee (the “Committee”). The purpose of the Committee was to oppose 20 21 1 Hannon Brenton, “Porn empire reports half billion dollars in revenue – but ends 22 year with loss”, Luxembourg Times (Mar. 23, 2018) available at https://luxtimes.lu/luxembourg/33248-porn-empire-reports-half-billion-dollars-in- 23 revenue-but-ends-year-with-loss. 2 Florian Flade, “Seine dreckigen Hobbys”2 Welt (Apr. 19, 2015) available at 24 https://www.welt.de/print/wams/wirtschaft/article139749131/Seine-dreckigen- 25 Hobbys.html. 26 -4- 27 FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT 28 Case 2:17-cv-08906-DOC-JPR Document 45 Filed 08/27/18 Page 6 of 138 Page ID #:424 1 passage of the “County of Los Angeles Safer Sex in the Adult Film Industry Act,” 2 which would require that adult film actors to use condoms in their adult 3 performances. However, because Froytal is a based outside of the United States, 4 this contribution was in violation of California’s Political Reform Act. To 5 obscure this transaction, the Committee decided to refund Froytal’s contribution 6 with the expectation that it would be replaced by a contribution from a USA 7 affiliate. 8 9 10 11 12 13 14 15 Exhibit 1 in Support of Stipulation, Decision and Order at 6, No on Government 16 Waste, No on Measure B, Major Funding By Manwin USA; Diane Duke; Froytal 17 Services Limited; and Mindgeek USA Incorporated F.K.A. Manwin USA, Inc., 18 Cal. Fair Political Practices Commission (FPPC) Case No. 15/1133 (approved 19 Dec.