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CASE 0:18-cv-00232-JRT-HB Document 6 Filed 05/14/18 Page 1 of 26

UNITED STATES DISTRICT COURT


DISTRICT OF MINNESOTA

)
FurnitureDealer.net, Inc. ) Civil Case No.: 0:18-cv-00232 (JRT/FLN)
)
Plaintiffs, )
) FIRST AMENDED COMPLAINT
vs. ) (Copyright Infringement)
)
Amazon.com, Inc., and )
COA, Inc. dba Coaster ) JURY TRIAL DEMANDED
Company of America )
)
Defendants. )

Plaintiff FurnitureDealer.net, Inc., as and for its Complaint against Defendants

Amazon.com, Inc., and COA, Inc. dba Coaster Company of America states and alleges as

follows:

PARTIES

1. Plaintiff FurnitureDealer.net, Inc. (“FurnitureDealer.Net”) is a Minnesota

corporation with its principle place of business in Burnsville, Minnesota.

2. On information and belief, Defendant Amazon.com, Inc. (“Amazon.com”)

is a Delaware corporation with its principle place of business in Seattle, Washington.

3. On information and belief, Defendant COA, Inc. dba Coaster Company of

America is a California corporation with its principle place of business in Santa Fe

Springs, California.
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JURISDICTION AND VENUE

4. This Court has original and exclusive jurisdiction of this action under 28

U.S.C. §§ 1331 and 1338(a) in that this is an action for, without limitation: (i) copyright

infringement arising under the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq.; and (ii)

unauthorized and improper alteration or removal of copyright management information in

violation of 17 U.S.C. §§ 1202 et seq. This Court has supplemental jurisdiction pursuant to

28 U.S.C. § 1367(a) over the related claims of breach of contract and common law unjust

enrichment.

5. This Court also has subject matter jurisdiction over Defendants pursuant to

28 U.S.C. § 1332. Plaintiff and Defendants are each citizens of different states, and the

amount in controversy far exceeds $75,000, exclusive of interest and costs.

6. Venue is appropriate in this judicial district under 28 U.S.C. §§ 1391(b) and

1400(a).

JURY DEMAND

7. Plaintiff requests a jury trial for all issues so triable.

BACKGROUND FACTS

8. Plaintiff FurnitureDealer.Net creates, produces and manages full-service

internet marketing solutions for the home furnishings industry. Without limitation,

FurnitureDealer.Net creates, designs, manages and markets over eight hundred and fifty

(850) home furnishings websites. This includes authoring and creating original content

for use on such sites. Accordingly, one of FurnitureDealer.Net’s most valuable assets is

its original product content library consisting of, without limitation, copyright protected
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and search engine optimized descriptive text (“Content Library”). Such Content Library

is stored in an automated database which is utilized to populate the websites of

FurnitureDealer.Net’s clients.

9. United States Federal Certificate of Registration No. TXu 2-065-062 was

issued by the Register of Copyrights effective September 22, 2015 and confers

registration of FurnitureDealer.Net’s automated database, including, without limitation,

its Content Library, pursuant to 17 U.S.C. § 102(a)(5). The Certificate of Registration is

attached to this Complaint as Exhibit A.

10. Without limitation, FurnitureDealer.Net’s Content Library includes original

and search engine optimized descriptive text covering FurnitureDealer.Net’s longtime

customer COA, Inc. dba Coaster Company of America’s (“Coaster”) catalog.

11. FurnitureDealer.Net owns all rights, title and interest, including all

intellectual property rights, in the original descriptive text it authored, created and

maintained for Coaster and which is included in its Content Library pursuant to well

established copyright law and the contract entered between FurnitureDealer.Net and

Coaster on or about February 29, 2010 (“Coaster Agreement”).

12. Pursuant to the Coaster Agreement, FurnitureDealer.Net’s Coaster material

is authorized and licensed to be used solely and exclusively with: i) Coaster’s own

website created and managed by FurntureDealer.Net; and ii) websites of Coaster

authorized dealers who entered into their own separate licensing agreement with

FurnitureDealer.Net.

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13. The Coaster agreement contains tight restrictions on Coaster’s use of

FurnitureDealer.Net’s Content Library. Without limitation, the agreement expressly

prohibits Coaster from selling, licensing, sharing, copying or giving away any of

FurnitureDealer.Net’s Content Library to any third party.

14. Lacking any permission or authority, FurnitureDealer.Net’s original

Coaster content began appearing on Amazon.com URLs to promote and sell Coaster

furniture. FurnitureDealer.Net conducted an initial investigation which revealed

voluminous separate Amazon.com URLs containing infringing Coaster material

misappropriated and copied from FurnitureDealer.Net’s Content Library without

authorization

15. What followed was a frustrating and futile effort by FurnitureDealer.Net to

get Amazon.com and Coaster to respect FurnitureDealer.Net’s intellectual property rights

and voluntarily pull down and discontinue use of the infringing material.

16. FurnitureDealer.Net repeatedly notified Amazon.com and Coaster of such

unauthorized and infringing use of its Content Library. Amazon.com and Coaster have

blatantly ignored and failed to comply with FurnitureDealer.Net’s requests. Despite

having full knowledge of FurnitureDealer.Net’s rights, Amazon.com and Coaster have

intentionally continued to infringe upon and directly profit from FurnitureDealer.Net’s

original copyright protected material.

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Amazon.com’s Failure to Comply with FurnitureDealer.Net’s


DMCA Take Down Requests

17. FurnitureDealer.Net originally believed Amazon.com was acting solely as a

passive host or internet service provider for other third party resellers. Accordingly,

FurnitureDealer.Net submitted a written takedown request to copyright@amazon.com

pursuant to the Digital Millennium Copyright Act (“DMCA”) on February 25, 2016.

18. Such take down request was pursuant to and consistent with both the

DMCA and Amazon.com’s own “Notice and Procedure for Making Claims of Copyright

Infringement.” FurnitureDealer.Net provided a detailed description of the copyrighted

work infringed upon to make it very easy for Amazon.com to identify and take down the

infringing sites.

19. Specifically, FurnitureDealer.Net provided a separate spreadsheet

identifying three hundred ninety four (394) representative examples of Amazon.com

URLs containing infringing content. The spreadsheet included: (i) a side by side

comparison of the infringing text found at the infringing URLs and the corresponding

FurnitureDealer.Net original text; (ii) the furniture manufacturer’s name (in this case all

the sites involved Coaster branded furniture); (iii) the title or name of the subject Coaster

furniture piece; (iv) a link to the actual infringing URLs; and (v) a link to

FurnitureDealer.Net controlled and managed sites containing the corresponding

FurnitureDealer.Net authorized descriptive text.

20. Amazon.com acknowledged receipt of the take down request via an

automated e-mail response dated February 25, 2016. Amazon.com’s automated response

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included a link to the Amazon.com “Notice and Procedure for Making Claims of

Copyright Infringement” already complied with by FurnitureDealer.Net.

21. Despite fully complying with both the DMCA and Amazon.com

procedures, FurnitureDealer.Net received a second follow-up e-mail from Amazon.com

on February 26, 2016 indicating Amazon.com was “unable to accurately identify the

items you reference in your correspondence.” FurnitureDealer.Net was advised to “[c]ut

and paste the direct link to each item in the email.”

22. Amazon.com’s response was frustrating considering FurnitureDealer.Net

had already provided a detailed spreadsheet containing: (i) active links to three hundred

ninety four (394) representative infringing URLs; and (ii) an actual copy of the infringing

descriptive text found at such sites.

23. Amazon.com’s February 26, 2016 email expressly condoned the

submission of multiple instances of infringement in the same notice. (“If there is more

than one instance of the item, or similar works that you claim to infringe on your

copyright, please provide identifying information for each, but you may include them all

in one notice.”)

24. Despite having previously provided the requested information,

FurnitureDealer.Net complied with Amazon.com’s request and pasted the infringing

URLs directly into a responsive email dated February 26, 2016. FurnitureDealer.Net also

provided and attached courtesy copies of: (i) its original DMCA takedown notice; (ii) the

original detailed spreadsheet containing the very information requested; and (iii)

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Amazon.com’s February 26, 2016 e-mail requesting that the infringing URLs be pasted

directly into an email.

25. Amazon.com acknowledged receipt of FurnitureDealer.Net’s second notice

and request by way of email dated February 27, 2016. However, rather than taking any

action, Amazon.com advised for the first time that “when submitting notices of copyright

infringement, please identify the exact copyright protected material you claim is being

used by third parties on Amazon.com, such as the specific image or text in question.”

26. Amazon.com’s response ignored the fact that the very information it was

requesting had already been provided on two separate occasions. Amazon.com also

ignored the fact it had previously requested only that the infringing URLs be pasted

directly into an email, which FurnitureDealer.Net complied with.

27. Setting aside its frustration, FurnitureDealer.Net responded by way of email

dated February 29, 2016 and explained that each of its prior two requests had in fact

identified with detail specific FurnitureDealer.Net copyright protected descriptive text

being infringed upon. FurnitureDealer.Net again included courtesy copies of the subject

spreadsheet and its prior requests/communications.

28. In response, FurnitureDealer.Net received the identical automated

responsive email previously received in response to its initial DMCA takedown notice.

The email acknowledged receipt of what was now FurnitureDealer.Net’s third takedown

request and referred FurnitureDealer.Net to the same “Notice and Procedure for Making

Claims of Copyright Infringement” FurnitureDealer.Net had already complied with. The

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email also promised that a “response was forthcoming”, and that Amazon.com would

contact FurnitureDealer.Net if “additional information is required.” No additional

communications or responses were received from Amazon.com. Moreover, the

infringing material was not taken down, including remaining on the identified sites.

29. Having received no relief or response to its February 29, 2016 email,

FurnitureDealer.Net sent follow-up correspondence via Federal Express to

Amazon.com’s Legal Department dated April 1, 2016. The correspondence noted that:

(i) FurnitureDealer.Net had fully complied with both the DMCA and Amazon.com’s

independent policies and procedures; (ii) had patiently responded to Amazon.com’s

specific requests; and (iii) Amazon.com had failed to take any steps to take down the

infringing material. FurnitureDealer.Net’s April 1, 2016 correspondence again requested

that Amazon.com immediately take down the infringing content. FurnitureDealer.Net

enclosed a courtesy copy of its original February 25, 2016 take down request, including

the spreadsheet containing relevant detailed information.

Amazon.com’s Claim That Coaster Provided Permission to Use


FurnitureDealer.Net’s Content Library

30. FurnitureDealer.Net received Amazon.com’s first substantive response via

email dated April 5, 2016. Amazon.com alleged that it had received the infringing

content from Coaster. Specifically, Amazon.com “Copyright/Trademark Agent” Chad

Bundy contended, “. . .[T]he advertised items as well as the listed item descriptions are

supplied to Amazon.com by the product manufacturers themselves. Please confirm that

your client is not receiving the same item descriptions from the manufacturers.”

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31. FurnuitureDealer.Net responded to Amazon.com’s request via email dated

April 6, 2016. FurnitureDealer.Net explained: (i) “[A]s previously advised,

FurnitureDealer.Net creates, designs, manages and markets over 850 home furnishings

websites. This includes authoring and creating original descriptive text for use on such

sites.”; (ii) “The subject infringing descriptive text complained about relates solely and

exclusively to Coaster Company of America products (“Coaster”).”; (iii) “Coaster is a

longstanding customer of FurnitureDealer.Net [and] FurnitureDealer.Net designed and

manage[d] Coaster’s website located at www.coasterfurniture.com.; (iv) “As part of this

relationship, FurnitureDealer.Net authored and owns the descriptive text previously

identified to Amazon;” and (v) “Such original descriptive text is utilized to promote and

sell Coaster products at multiple FurnitureDealer.Net managed websites.

32. FurntureDealer.Net also contacted Coaster's Vice President of Marketing,

Toby Konetzny who confirmed FurnitureDealer.Net’s ownership of the subject Coaster

material and denied Coaster ever granted Amazon.com or any other retailer, including

any retailers associated with the infringing Amazon sites, permission to copy or use any

of FurnitureDealer.Net’s Coaster material.

33. FurnitureDealer.Net advised Amazon.com that Coaster confirmed

FurnitureDealer.Net’s ownership of the subject Coaster material and denied giving

Amazon.com permission or authority to use such content.

34. FurnitureDealer.Net also reminded and notified Amazon.com that every

single product page of the FurnitureDealer.Net managed Coaster website

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(www.coasterfurniture.com) contained a copyright notice identifying FurnitureDealer.Net

as the copyright owner of the subject content. Such notice alerted users - in at least two

(2) places - that "Nothing on this page may be copied or reproduced without explicit

permission." FurnitureDealer.Net provided Amazon.com with the following sample

notice:

35. FurnitureDealer.Net demanded Amazon.com, to the extent it was relying on

any purported express permission to copy, reproduce, display, or publish

FurnitureDealer.Net’s copyright protected content, to disclose and provide the identity

and contact information for the entity or person purported to have provided such

authority.

36. Lastly, FurnitureDealer.Net again noted that such unauthorized and

infringing use of its content at voluminous unauthorized Amazon.com sites continued to

cause significant damage to FurnitureDealer.Net. Without limitation,

FurnitureDealer.Net explained that it tightly controls and limits the use and distribution

of its original descriptive text in order to maximize the search engine optimization and

organic rankings associated with its clients’ sites. The unauthorized placement of

FurnitureDealer.Net’s original text on hundreds of Amazon.com sites dilutes and

negatively impacts SEO rankings and website traffic for FurnitureDealer.Net’s paying

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clients’ websites. FurnitureDealer.Net again requested that Amazon immediately

takedown the specified postings.

37. Amazon.com responded via an email dated April 8, 2016 from Mr. Bundy.

Mr. Bundy reiterated Amazon.com’s allegation that the subject content had been

provided by Coaster. Bundy also alleged Coaster was claiming ownership in all the

material it allegedly provided to Amazon.com. Mr. Bundy attempted to put the burden

for resolving the alleged conflict on FurnitureDealer.Net. Mr. Bundy wrote:

“We have confirmed that the content on Amazon.com relating to Coaster


Company of America's ("Coaster") products was provided by Coaster.
Further to the matter, we reached out to Coaster's Vice President of
Marketing, Toby Konetzny, who confirmed that Coaster owns all the rights
to the data provided to Amazon.com. At this time there appears to be
conflicting claims of ownership with regards to the content at issue. It
seems most prudent for this matter to be resolved directly between
FurnitureDealer.net and Coaster. Should a resolution between the two
parties be reached please let us know and we will take appropriate action.”

Amazon.com Admits it is Profiting from Direct Sales of Coaster Furniture

38. FurnitureDealer.Net responded by way of email dated April 12, 2016.

FurntureDealer.Net noted that Amazon.com’s actions and responses to date indicated it

was not acting solely as a passive internet service provider (“ISP”) for third party

resellers with respect to the infringing content. FurnitureDealer.Net noted that

Amazon.com appeared to be acting as an active retailer or direct seller and utilizing

FurnitureDealer.Net’s copyright protected content to profit from the direct sale of Coaster

products. FurntureDealer.Net noted that such actions constituted direct copyright

infringement.

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39. FurnitureDealer.Net explained that to the extent Amazon.com was acting as

an ISP for other third party sellers, Amazon.com had failed to comply with its DMCA

obligations. Without limitation, Amazon.com had not taken down the properly identified

infringing content and had failed to provide a valid or proper “Counter-Notice” received

from any responsible third parties.

40. A proper Counter-Notice would have provided FurnitureDealer.Net with:

(i) a signature from the responsible third party; (ii) a statement under penalty of perjury

that such third party has a good faith belief in its claimed right to post the subject

material; (iii) the third party’s name, address, and telephone number; and (iv) if the third

party’s address is outside of the United States, an acknowledgment that it consents to

jurisdiction in U.S. federal court and that such third party will accept service of process

from the DMCA claimant or its agent.

41. FurntureDealer.Net noted that to the extent Amazon.com was acting as an

ISP with respect to the infringing content being utilized by third party resellers, Amazon

had lost its DMCA provided “safe harbor” or immunity to infringement claims.

42. In an effort to avoid any potential miscommunication or mix-up,

FurnitureDealer.Net’s April 12, 2016 email sought a telephone conference with

Amazon.com. It explained, “FurntureDealer.Net is the author and owner of the subject

descriptive text. Coaster has expressly acknowledged and confirmed

FurnitureDealer.Net's owns such text. Accordingly, Amazon's claims to the contrary are

false and puzzling. In an effort to avoid any potential misunderstanding and confusion,

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and in the hopes of mitigating further ongoing damage to FurnitureDealer.Net, I would

like to have a telephone conference to discuss this matter. Please let me know your

availability. Thank you.”

43. Having received no substantive response to its April 12, 2016 email,

FurnitureDealer.Net sent a follow-up correspondence reiterating its claims and requests

via Federal Express to Amazon.com’s Legal Department on April 22, 2016.

44. Amazon.com responded by way of email dated April 26, 2006 from Mr.

Bundy. Mr. Bundy confirmed Amazon.com was not acting as an ISP but rather was

using the infringing content as a direct seller of Coaster furniture. Mr. Bundy again

alleged Coaster owned the subject content and attempted to put the burden on

FurnitureDealer.Net to resolve the alleged conflict. He wrote:

“As the detail pages at issue are items "sold by Amazon.com," the alleged
infringement is not subject to the DMCA. We have communicated with
our vendor who has confirmed ownership of the copyrighted content in
question. Amazon.com encourages you to work directly with Coaster
Company of America to resolve the issue. Should you reach a resolution in
your client's favor, Amazon.com will take appropriate action.”

Coaster Provides Express Written Confirmation Refuting Amazon.com’s


Alleged Authority – Amazon.com Continues to Infringe

45. FurnitureDealer.Net again reached out to Coaster who again denied

authorizing Amazon.com to utilize FurnitureDealer.Net’s copyright protected content.

FurnitureDealer.Net advised Amazon.com of this fact by way of correspondence via

Federal Express to Amazon.com’s legal department dated May 19, 2016.

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46. Amazon.com responded by way of a brand new cryptic email dated May

21, 2016. Such email implicitly acknowledged the alleged infringing activity but

indicated Amazon.com was unable to stop it:

“Based on the information you provided in your intellectual property rights


infringement complaint, we are unable to remove the listings that you noted
on these detail pages. When a detail page is created, it becomes a
permanent catalog page on Amazon.com that will remain even if the
creator's inventory sells out. Other sellers can list their items for sale
against pages that you have created provided that the items are the same.”

47. FurnitureDealer.Net subsequently obtained written correspondence from

Coaster’s in-house counsel dated June 9, 2016 acknowledging FurnitureDealer.Net is the

author and owner of the original copyright protected content being utilized by

Amazon.com to promote and sell Coaster furniture and confirming Coaster at no time

provided Amazon.com authority to copy or use such FurnitureDealer.Net content for any

purpose. FurnitureDealer.Net forwarded such correspondence via Federal Express to

Amazon.com’s legal department on June 16, 2016.

48. FurnitureDealer.Net received an automated response to its June 16, 2016

correspondence. Amazon.com never provided a substantive response to such

correspondence. Moreover, Amazon.com has never stopped using FurnitureDealer.Net’s

original and copyright protected content. Rather, both Amazon.com and Coaster have

continued to profit from the intentional and willful infringement of FurnitureDealer.Net’s

copyright protected content.

49. Contrary to Coaster’s repeated denials that it gave Amazon permission or

authority to use FurnitureDealer.Net’s copyright protected content, FurnitureDealer.Net

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recently learned that Coaster was personally responsible for loading some or virtually all

of the subject FurnitureDealer.Net Coaster material into Amazon.com’s system for use

with Amazon detail pages.

50. Also contrary to Coaster’s repeated denials, FurnitureDealer.Net recently

learned that Coaster has not requested or demanded Amazon.com to stop using and

takedown FurnitureDealer.Net’s copyright protected Coaster material. Based on these

new revelations, FurnitureDealer.Net now suspects Coaster was also directly and actively

involved in and responsible for prior infringements by other third parties.

51. Amazon.com’s and Coaster’s wrongful and infringing conduct has

damaged and will continue to damage FurnitureDealer.Net.

52. Upon information and belief, Amazon.com and Coaster intend to continue

their course of conduct and to wrongfully copy, use, display, publish, infringe upon, sell,

and otherwise profit from FurnitureDealer.Net’s original and copyright protected Coaster

material unless and until Amazon.com and Coaster are enjoined by this Court.

53. As a direct and proximate result of the acts of Amazon.com and Coaster

alleged above, FurnitureDealer.Net has and will suffer irreparable damage.

FurnitureDealer.Net has no adequate remedy at law and will continue to suffer

irreparable damages until Amazon.com’s and Coaster’s actions alleged above are

enjoined by the Court.

54. Amazon.com’s and Coaster’s infringing acts and wrongful conduct were,

and, if continued hereafter, will be, committed knowingly, intentionally and willfully.

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COUNT I

Direct Copyright Infringement


(Amazon.com and Coaster)

55. Plaintiff re-alleges and incorporates by reference the allegations contained

in the preceding paragraphs.

56. By their actions alleged above, Defendants have directly infringed and will

continue to directly infringe Plaintiff’s original and copyright protected Coaster material.

57. Plaintiff is entitled to an injunction restraining Defendants and their

officers, agents, and employees, and all persons acting in concert with them, from

engaging in any further such acts in violation of the copyright laws.

58. Plaintiff is further entitled to recover from Defendants the damages,

including attorneys’ fees, it has sustained as a result of Defendants’ infringing conduct,

including, but not limited to, any gains, profits, and advantages obtained by Defendants

relating to their acts of infringement alleged above. Among other things, Plaintiff is

entitled to recover its lost profits, Defendants’ wrongful profits, diminution in value of

Plaintiff’s Content Library, statutory damages, enhanced damages in accordance with 17

U.S.C. § 504(c)(2), attorneys’ fees, interest, and costs. At present, the amount of such

damages, gains, profits, and advantages cannot be fully ascertained by Plaintiff.

COUNT II

Contributory Infringement
(Amazon.com and Coaster)

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59. Plaintiff re-alleges and incorporates by reference the allegations contained

in the preceding paragraphs.

60. Defendants induced, caused and materially contributed to the infringing

acts of others by encouraging, inducing, allowing and assisting others to copy, use,

display and publish FurnitureDealer.Net’s original and copyright protected Coaster

material, including, without limitation, any such copying and use by Amazon.com’s

customers, third party resellers, affiliates and/or associates.

61. Defendants had knowledge of the infringing acts relating to Plaintiff's

original and copyright protected Coaster material.

62. The acts and conduct of Defendants, as alleged herein, constitute

contributory copyright infringement.

63. Plaintiff is entitled to an injunction restraining Defendants and their

officers, agents, employees, and all persons acting in concert with them, from engaging in

any further such acts in violation of the copyright laws.

64. Plaintiff is further entitled to recover from Defendants the damages,

including attorneys’ fees, it has sustained as a result of Defendants’ infringing conduct,

including, but not limited to, any gains, profits, and advantages obtained by Defendants

relating to their acts of infringement alleged above. Among other things, Plaintiff is

entitled to recover its lost profits, Defendants’ wrongful profits, diminution in value of

Plaintiff’s Content Library, statutory damages, enhanced damages in accordance with 17

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U.S.C. § 504(c)(2), attorneys’ fees, interest, and costs. At present, the amount of such

damages, gains, profits, and advantages cannot be fully ascertained by Plaintiff.

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COUNT III

Vicarious Infringement
(Amazon.com and Coaster)

65. Plaintiff re-alleges and incorporates by reference the allegations contained

in the preceding paragraphs.

66. Numerous individuals and entities directly infringed Plaintiff's original and

copyright protected Coaster material, including, without limitation, Amazon.com’s

customers, third party resellers, affiliates and/or associates.

67. Defendants had the right and ability to control the infringing acts of the

individuals or entities who directly infringed Plaintiff’s original and copyright protected

Coaster material.

68. Defendants obtained a direct financial benefit from the infringing activities

of the individuals or entities who directly infringed Plaintiff's copyrights.

69. The acts and conduct of Defendants, as alleged herein, constitute vicarious

copyright infringement.

70. Plaintiff is entitled to an injunction restraining Defendants and their

officers, agents, and employees, and all persons acting in concert with them, from

engaging in any further such acts in violation of the copyright laws.

71. Plaintiff is further entitled to recover from Defendants the damages,

including attorneys’ fees, it has sustained as a result of Defendants’ infringing conduct,

including, but not limited to, any gains, profits, and advantages obtained by Defendants

relating to their acts of infringement alleged above. Among other things, Plaintiff is

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entitled to recover its lost profits, Defendants’ wrongful profits, diminution in value of

Plaintiff’s Content Library, statutory damages, enhanced damages in accordance with

17 U.S.C. § 504(c)(2), attorneys’ fees, interest, and costs. At present, the amount of such

damages, gains, profits, and advantages cannot be fully ascertained by Plaintiff.

COUNT IV

Alteration or Removal of Copyright Management Information


(Amazon.com and Coaster)

72. Plaintiff re-alleges and incorporates by reference the allegations contained

in the preceding paragraphs.

73. The product pages of the FurnitureDealer.Net managed Coaster website

contained copyright notices identifying Plaintiff as the owner of FurnitureDealer.Net’s

original and copyright protected Coaster material.

74. The inclusion of a copyright notice, including the identity of Plaintiff,

constitutes "copyright management information" as defined in 17 U.S.C. § 1202(c).

75. Defendants, without authority of Plaintiff or the law, intentionally removed

and/or altered and have caused and induced others to remove and/or alter such copyright

management information from FurnitureDealer.Net’s subject works, and has thereafter

distributed the improperly modified works, having reasonable grounds to know that such

acts will induce, enable, facilitate or conceal an infringement of copyright in violation of

17 U.S.C. § 1202(b)(1) and (3).

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76. Defendants’ removal or alteration of copyright management information from

FurnitureDealer.Net’s subject works, and their subsequent distribution of the improperly

modified works was, and is, willful and intentional, and was, and is, executed with full knowledge

of FurnitureDealer.Net’s rights under copyright law, and in disregard of FurnitureDealer.Net’s

rights.

77. FurnitureDealer.Net is entitled to recover its actual damages suffered as a result of

the violation and any profits of Defendants attributable to the violation and not taken into account

in computing actual damages, or, at FurnitureDealer.Net’s election, statutory damages pursuant to

17 U.S.C. § 1203(c).

78. FurnitureDealer.Net is entitled to recover costs and attorneys' fees from

Defendants pursuant to 17 U.S.C. § 1203(b)(4) and (5).

79. Defendants’ violations of 17 U.S.C. § 1202(b)(1) and (3) have caused, and, unless

restrained by this Court, will continue to cause, irreparable injury to FurnitureDealer.Net not fully

compensable in monetary damages. Pursuant to 17 U.S.C. § 1203(b)(1), FurnitureDealer.Net is

entitled to a preliminary and permanent injunction enjoining Defendants from further such

violations.

COUNT V

Unjust Enrichment
(Amazon.com and Coaster)

80. Plaintiff re-alleges and incorporates by reference the allegations contained

in the preceding paragraphs.

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81. Defendants have unlawfully received benefits from their unauthorized use

of Plaintiff’s original and copyright protected Coaster material.

82. Defendants have accepted and retained the benefits knowing that their

conduct was unjust and that retaining the benefits was inequitable.

83. Defendants have been, and continue to be, unjustly enriched by retaining

the benefits they have received as a result of their improper conduct.

COUNT VI

Breach of Contract
(Coaster)

84. Plaintiff re-alleges and incorporates by reference the allegations contained

in the preceding paragraphs.

85. Defendant Coaster voluntarily accepted and agreed to the terms of the

Coaster Agreement, including, without limitation: i) the limited authorization and license

to use FurnitureDealer.Net’s Coaster content solely and exclusively with Coaster’s own

website created and managed by FurntureDealer.Net and websites of Coaster authorized

dealers who entered into a separate licensing agreement with FurnitureDealer.Net; and ii)

the prohibition on Coaster selling, licensing, sharing, copying or giving away any of

FurnitureDealer.Net’s Content Library to any third party.

86. Upon information and belief, Coaster violated and breached the Coaster

Agreement by, inter alia, copying and/or uploading FurnitureDealer.Net’s original and

copyright protected Coaster material to Amazon.com and others for use with

Amazon.com detail pages as well as other third party retail sites.

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CASE 0:18-cv-00232-JRT-HB Document 6 Filed 05/14/18 Page 23 of 26

87. Plaintiff has been, and will continue to be, damaged as a result and

proximate cause of Defendant’s breach. The amount of damages suffered by Plaintiff as

a result of Defendant’s breach exceeds $75,000.

88. Plaintiff has been, and will continue to be, irreparably harmed by this

breach of the Coaster Agreement.

89. Plaintiff is without an adequate remedy at law.

COUNT VII

Breach of Implied Covenant of Good Faith and Fair Dealing


(Coaster)

90. Plaintiff re-alleges and incorporates by reference the allegations contained

in the preceding paragraphs.

91. The Coaster Agreement contained implied covenants of good faith and fair

dealing providing that neither party would act to deprive the other of the benefits of the

agreements between them.

92. Coaster’s conduct represents a breach of the implied covenants of good

faith and fair dealing between FurnitureDealer.Net and Coaster, including, without

limitation, by Coaster falsely representing that it had not granted permission or authority

to Amazon.com to use FurnitureDealer.Net’s Coaster content despite having been

personally responsible for uploading the content to Amazon.com for use with

Amazon.com detail pages. Coaster’s actions and misrepresentation have unreasonably

delayed FurnitureDealer.Net’s efforts to enforce it rights and obtain the full benefits of

the Coaster Agreement.

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CASE 0:18-cv-00232-JRT-HB Document 6 Filed 05/14/18 Page 24 of 26

93. As a direct and proximate result of such breach and Coaster’s wrongful

conduct, FurnitureDealer.Net has been damaged in an amount to be determined at trial.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully request that this Court enter judgment in its

favor and against Defendants as follows:

1. That the Court find that Plaintiff has a valid copyright for its Content

Library, including its original and copyright protected Coaster material;

2. That the Court find that Defendants have infringed Plaintiff’s copyright;

3. That the Court find that Defendants infringement of Plaintiff’s copyright

has been knowing and willful;

4. That the Court find that Defendants removed and/or altered Plaintiff’s

copyright management information, and distributed such improperly modified material in

violation of 17 U.S.C. § 1202(b)(1) and (3);

5. That the Court find that there is a substantial likelihood that Defendants

will continue to infringe Plaintiff’s copyrights and violate 17 U.S.C. § 1202(b)(1) and (3)

unless enjoined from doing so;

6. That the Court find that Defendants have been unjustly enriched by their

conduct;

7. That the Court find that Defendant Coaster breached the Coaster

Agreement and breached the implied covenant of good faith and fair dealing

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CASE 0:18-cv-00232-JRT-HB Document 6 Filed 05/14/18 Page 25 of 26

8. That Defendants and their officers, directors, agents, servants, employees,

and all other persons in active concert or privity or in participation with them, be enjoined

from: (i) directly or indirectly continuing to infringe Plaintiff’s copyright, including being

enjoined from copying, or in any way using, distributing, publishing or displaying

Plaintiff’s copyright protected Content Library or to participate or assist in any such

activity; and (ii) directly or indirectly continuing to violate 17 U.S.C. § 1202(b)(1) and (3);

9. That Defendants and their directors, officers, agents, servants, employees,

and all other persons in active concert or privity or in participation with them, be required

to return to Plaintiff any and all versions, copies, or duplicates, in whatever form, of any

portion of Plaintiff’s copyright protected Content Library in their possession, control, or

custody;

10. That Defendants be required to file with the Court and to serve on Plaintiff

a written report, under oath, setting forth in detail the manner and form in which

Defendants have complied with the Court’s order;

11. That judgment be entered for Plaintiff and against Defendants for Plaintiff’s

actual damages, which include, among other things, its lost profits, diminished value of

its Content Library, and for Defendants’ profits relating to Defendants’ conduct

complained of herein;

12. That judgment be entered for Plaintiff and against Defendants for statutory

damages based upon Defendants’ acts of infringement and violations of 17 U.S.C. §

1202(b)(1) and (3);

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CASE 0:18-cv-00232-JRT-HB Document 6 Filed 05/14/18 Page 26 of 26

13. That Defendants be required to account for all gains, profits, and

advantages derived from their acts complained of herein and/or other violations of law;

14. That all gains, profits, and advantages derived by Defendants from their

acts complained of herein and/or other violations of law be deemed to be held in

constructive trust for Plaintiff’s benefit;

15. That the Court enter judgment for Plaintiff and against Defendants for

enhanced damages due to the willful, intentional and bad faith nature of Defendant’s

conduct complained of herein;

16. That the Court enter judgment for Plaintiff and against Defendants for

Plaintiff’s costs, interest, and attorneys’ fees; and

17. That the Court enter judgment against Defendants and for Plaintiff for such

other and further relief as the Court deems appropriate and equitable.

Dated: May 14, 2018 BRIGGS AND MORGAN P.A.

By: s/Michael M. Lafeber_______________


Michael M. Lafeber (#242871)
Scott M. Flaherty (#388354)
2200 IDS Center
80 South Eighth Street
Minneapolis, Minnesota 55402
Telephone: (612) 977-8400
Facsimile: (612) 977-8650

ATTORNEYS FOR PLAINTIFF

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