UNITED STATES DISTRICT COURT
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UNITED STATES DISTRICT COURT
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Third-party plaintiff MP3Board, Inc. through its undersigned attorney, Requests a Jury Trial on All Issues and alleges as follows:
1. Plaintiffs ARISTA RECORDS, INC., ATLANTIC RECORDING CORPORATION, BMG MUSIC d/b/a THE RCA RECORDS LABEL, CAPITOL RECORDS, INC., ELEKTRA ENTERTAINMENT GROUP INC., HOLLYWOOD RECORDS, INC., INTERSCOPE RECORDS, LAFACE RECORDS, MOTOWN RECORD COMPANY, L.P., SONY MUSIC ENTERTAINMENT INC., UMG RECORDINGS, INC., VIRGIN RECORDS AMERICA, INC. and WARNER BROS. RECORDS INC., have filed a complaint against defendant MP3Board, Inc. A copy of plaintiffs' complaint is attached to this third-party complaint as Exhibit "A." Without admitting the truth thereof, the allegations of plaintiffs' complaint are incorporated herein by this reference.
2. Defendant, acting also as a counterclaimant, has filed an amended answer and amended counterclaim. A copy of said amended answer and amended counterclaim is attached hereto as Exhibit "B." The allegations of said amended answer and amended counterclaim are incorporated herein by this reference.
3. Plaintiff's action purports to arise under the laws of the United States including, without limitation, the copyright laws of the United States, 17 U.S.C. §§ 101 et. seq. In addition, plaintiffs purport to state a claim for unfair competition under the laws of the State of New York.
4. This court has subject matter jurisdiction of plaintiffs' action and this third-party complaint under 28 U.S.C. §§ 1331 and 1338(a) and under 28 U.S.C. § 1367(a) for supplemental jurisdiction over the claimed related state law cause of action.
5. This court has personal jurisdiction over third-party defendants Time Warner Corp. and America Online, Inc. because, according to the knowledge and information available to third-party plaintiff, each such
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third-party defendant is doing business in the State of New York and has developed and distributed the "Gnutella" software that is the subject of this third-party complaint with the knowledge and with the intention of making such software available to residents of New York, California, the United States for implementation on Internet services operative in the State of New York and/or used by New York residents, California and/or California residents, and the United States.
6. Plaintiffs' complaint alleges that the provision of automated hypertext links to "mp3 files" for website visitors including those arising out of MP3Board’s Gnutella search engine, constitutes contributory copyright infringement, vicarious copyright infringement and unfair competition under the common law of the State of New York.
7. Third-party plaintiff employed and disseminated "Gnutella" Internet software which provided an automated software system for creating millions of hypertext links to "mp3 files" for, on information and belief, millions of website visitors and Internet users.
8. Third-party plaintiff alleges, on the basis of knowledge and information, that the "Gnutella" software employed in providing hypertext links to website visitors was developed by third-party defendants Time Warner and America Online, Inc. acting through their wholly owned subsidiary and agent Nullsoft and with the knowledge and under the authority of third-party defendants. Third-party defendants have ratified the development, use, and dissemination of the Gnutella software that is the subject of this third-party complaint.
9. Third-party defendants Time Warner Corp. and America Online, Inc. are liable to defendant and third-party plaintiff MP3Board, Inc. for all or
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part of the plaintiff's claim against the defendant and third-party plaintiff MP3Board, Inc. on all of the following grounds:
a. Gnutella software was developed and disseminated with knowledge by third-party defendants of all of the uses to which it would be put by, among others, defendant and third-party plaintiff MP3Board, Inc.
b. Gnutella software was developed and disseminated with knowledge by third-party defendants that said software could and would perform essentially the same functions as the software previously developed and promulgated by Napster, Inc. - the subject of litigation in the Northern District of California in the case titled A&M Records, Inc. et. al. v. Napster, Inc., Action No. C 99-5183 MHP, but without the centralization in a single website as is and was the case in the Napster litigation.
c. Gnutella was developed and disseminated by third-party defendants with the knowledge that said software would be incorporated in websites and indexed by websites, such as the website maintained by defendant and third-party plaintiff MP3Board, Inc., and with knowledge that such websites would rely on the strength of the Time Warner and America Online, Inc. imprimaturs and the close association between Time Warner and additional counterclaim defendant Recording Industry Association of America ("RIAA") and its member record companies. Third-party plaintiff did rely on the strength of third-party defendants, their imprimaturs and their close association with the RIAA in making Gnutella software operative on third-party plaintiff's website.
d. Gnutella was developed and disseminated by third-party defendants without any means of accommodating the requirements of the Digital Millennium Copyright Act ("DMCA") that was then in effect.
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e. Gnutella was developed and disseminated by third-party defendants who willfully failed to provide copyright control mechanisms for mp3 files and other files and failed to update such software with such mechanisms.
f. Gnutella was developed and disseminated by third-party defendants who knew of its intended use and distribution related to the mass personal posting of MP3 files – of all types copyright infringing and non-copyright infringing – and failed to prevent Gnutella’s dissemination in the Internet community in the United States and worldwide and failed to design and implement its software in a manner that would prevent mass dissemination of Gnutella and listing of MP3 files and willfully failed to act to assert its rights and prevent Gnutella’s spread.
g. By reason of the foregoing, third-party defendants acted willfully and knowingly, breached their duty of care, and furthermore impliedly warranted and represented that a website incorporating Gnutella software would not be subject to claims pursuant to the DMCA or to suit from the RIAA or its member record companies and have thereby become liable to third-party plaintiff for any judgment entered against third-party plaintiff and for third-party plaintiff's costs and attorney fees incurred in defending itself against the principal action herein.
h. By reason of the foregoing, third-party defendants are all or partly at fault for any and all injuries to Plaintiffs in the underlying action and such liability and damages should be allocated to the third party defendants and their agents and principals - and/or third party Plaintiff should be indemnified.
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WHEREFORE, defendant and third-party plaintiff MP3Board, Inc. demands judgment against third-party defendants Time Warner Corp. and America Online, Inc. for all or part of any sums that may be adjudged against defendant and third-party plaintiff in favor of plaintiffs or any plaintiff and for all costs and attorney fees incurred by defendant and third-party plaintiff MP3Board, Inc. in defending itself against the principal complaint herein and the rights and responsibilities of the parties related to the above issues and request is hereby made for a jury trial on all issues.
Dated: August 21, 2000