IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION

) ) Plaintiff, ) ) v. ) ) ) JUSTIN.TV, INC., YOUTUBE, LLC, ) and YOUTUBE, INC. ) ) Defendants. ) ___________________________________ )

ARK PROMOTIONS, INC.

Civil Action No. 3:12-cv-131

(Jury Trial Demanded)

COMPLAINT

NOW COMES the plaintiff, Ark Promotions, Inc., complaining of the defendants, and alleges and says as follows: NATURE OF ACTION 1. This is an action for unauthorized reception of cable service in violation of

47 U.S.C. 553, unauthorized publication or use of communications in violation of 47 U.S.C. 605, and copyright infringement under 17 U.S.C. 501. These claims arise from the defendants unauthorized reception and re-transmission of Plaintiffs copyrighted pay-per-view live broadcast of the Evander Holyfield versus Sherman Williams boxing match on January 22, 2011.

Case 3:12-cv-00131 Document 1 Filed 02/27/12 Page 1 of 14

PARTIES 2. Plaintiff Ark Promotions, Inc. (Plaintiff or Ark) is a corporation organized

and existing under the laws of the State of Louisiana with its principal place of business in Cornelius, North Carolina. Ark is in the business of promoting sports and entertainment events. 3. Defendant Justin.tv, Inc. (Justin.tv) is a corporation organized and existing

under the laws of the State of Delaware with a principal place of business in San Francisco County, California. Justin.tvs registered agent for service of process is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. 4. Defendant Youtube, Inc. is a corporation organized and existing under the laws of

the State of Delaware with a principal place of business in San Mateo County, California. Youtube, Inc.s registered agent for service of process is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. 5. Defendant Youtube, LLC (Youtube) is a limited liability company organized

and existing under the laws of the State of Delaware, with a principal place of business in San Mateo County, California. Youtubes registered agent for service of process is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. Upon information and belief, Youtube, LLC is the successor-in-interest of YouTube, Inc. YouTube, Inc. and YouTube, LLC are herein collectively referred to as YouTube. JURISDICTION AND VENUE 6. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

1331 and 1338.

2 Case 3:12-cv-00131 Document 1 Filed 02/27/12 Page 2 of 14

7.

Venue is proper in the Western District of North Carolina pursuant to 28 U.S.C.

1391 because Defendants are engaged in substantial activity within this judicial district and because the acts complained of herein have caused substantial harm to Plaintiff in this judicial district. FACTUAL BACKGROUND 8. On Saturday, January 22, 2011, four-time heavyweight boxing champion Evander

Holyfield fought Sherman Williams in a boxing match held at the Greenbrier Resort in White Sulphur Springs, West Virginia. 9. Ark promoted the boxing match and produced a live television broadcast (the

Live Broadcast) of the boxing match and all of its undercard events. 10. As part of its role as promoter of the boxing match, Ark sold tickets to watch the

boxing match in person at the Greenbrier Resort, and Ark licensed the rights to certain entities to distribute the Live Broadcast via cable television and satellite broadcast to residential and commercial viewers on a pay-per-view basis. 11. 12. The retail price for purchasing the pay-per-view Live Broadcast was $29.99. Prior to the boxing match, Plaintiff spent a significant amount of money

advertising and promoting the boxing match, including paying the fighters and purchasing advertising spots on national broadcast media outlets and the Internet. Attached hereto as Exhibit 1 is a promotional poster advertising the boxing match. 13. Plaintiff also spent a significant amount of money producing the Live Broadcast,

including paying a production team to film the live event and transmit it to a distributor. 14. Plaintiff reasonably anticipated that it would recoup its investment in the Live

Broadcast through its pay-per-view sales.

3 Case 3:12-cv-00131 Document 1 Filed 02/27/12 Page 3 of 14

15.

Plaintiff is the lawful owner of the Live Broadcast and all of the exclusive

copyrights therein, and is entitled to copyright protection of the Live Broadcast. 16. Plaintiff duly registered its copyright in the Live Broadcast with the United States

Copyright Office (Registration No. PA1764129) with an effective date of registration of February 28, 2011. A copy of the Certificate of Registration is attached hereto as Exhibit 2. 17. Defendant Justin.tv operates a for-profit website, www.justin.tv., that provides its

users the ability to stream live video such as webcams, video games, and, as with this case, copyrighted broadcasts. These live video feeds can be viewed by anyone using a computer connected to the Internet simply by accessing the www.justin.tv website. 18. Defendant Justin.tv bills itself on its website as the easiest way to create live

video and show anyone in the world whats happening right now. 19. Defendant Justin.tv provides detailed instructions on its website directing users

how to stream live video over www.justin.tv. 20. Justin.tv was not authorized to receive the Live Broadcast by means of a live

video stream over the Internet through the www.justin.tv website. 21. Justin.tv was not authorized to publish, transmit, reproduce, distribute or display

the Live Broadcast. 22. Prior to the boxing match and simultaneous to the transmission of the Live

Broadcast by Plaintiff, Plaintiff caused Defendant Justin.tv to be alerted to the fact that users of www.justin.tv were indicating that they planned to transmit the Live Broadcast through the www.justin.tv website. 23. Upon information and belief, Defendant Justin.tv took no action to prevent its

users from transmitting the Live Broadcast via the www.justin.tv website.

4 Case 3:12-cv-00131 Document 1 Filed 02/27/12 Page 4 of 14

24.

Several unauthorized live video streams of the Live Broadcast were transmitted

over the www.justin.tv website simultaneously with the authorized transmission of the Live Broadcast via the pay-per-view outlets licensed by Plaintiff. 25. Upon information and belief, the live video streams were retransmitted to the

www.justin.tv site from users who had access to the broadcast signal transmitted by an authorized cable or satellite television provider. Upon information and belief, these users employed their personal computers to retransmit the broadcast signal of the Live Broadcast to Defendant Justin.tv, which then re-transmitted the broadcast signal of the Live Broadcast via its www.justin.tv website. 26. During the period that Defendant Justin.tv was receiving and transmitting these

unauthorized transmissions of the Live Broadcast, Plaintiff continued to cause demands to be sent to Defendant Justin.tv that it immediately stop the unauthorized transmissions. 27. Upon information and belief, Defendant Justin.tv took no action to stop the

unauthorized reception and transmission of the Live Broadcast over the www.justin.tv website. 28. Upon information and belief, at virtually the same time as Plaintiff was

transmitting the Live Broadcast to paying customers via cable and satellite pay-per-view outlets, Justin.tv was retransmitting multiple unauthorized live video streams of the entire Live Broadcast over the Defendants www.justin.tv website to at least thousands of unauthorized, nonpaying viewers. 29. Upon information and belief, as a result of Defendant Justin.tvs failure and

refusal to stop the unauthorized reception and transmission of the Live Broadcast over the www.justin.tv website, at least thousands of people viewed the Live Broadcast without having to

5 Case 3:12-cv-00131 Document 1 Filed 02/27/12 Page 5 of 14

pay for it via the pay-per-view package made available by Plaintiff, thereby causing damage to Plaintiff in the form of lost revenues. 30. Defendant Youtube is the operator of a well-known video-sharing website having

a domain name of www.youtube.com. 31. Users of www.youtube.com can upload and view video content. The video

content available through www.youtube.com is both vast and widely varying in subject matter. 32. Typically, video content appearing on www.youtube.com is uploaded by a user

from a remote computer for storage on servers controlled by Defendant Youtube. Once the video content is stored on Defendant Youtubes servers, it may be accessed by users of the www.youtube.com website. 33. At all times relevant to this action, Defendant Youtube was aware that its website

had repeatedly been used to transmit unauthorized cable and satellite signals, including pay-perview broadcasts. 34. At all times relevant to this action, Defendant Youtube was aware that its website

had repeatedly been used to illegally broadcast copyrighted works without authorization of the copyright owner. 35. Defendant Youtube was not authorized to receive, publish, transmit, reproduce,

distribute or display the Live Broadcast. 36. Upon information and belief, at least on or about January 22 and January 23,

Defendant Youtube received, published, transmitted, reproduced, distributed and/or displayed the Live Broadcast via its www.youtube.com website. 37. Upon information and belief, at least thousands of people were consequently able

to view the Live Broadcast on Defendant Youtubes website without having to pay for it.

6 Case 3:12-cv-00131 Document 1 Filed 02/27/12 Page 6 of 14

FIRST CAUSE OF ACTION (Unauthorized Reception of Cable Service (47 U.S.C. 553)) 38. 39. view basis. 40. By virtue of the aforementioned wrongful conduct, Defendants have intercepted Plaintiff hereby incorporates the preceding paragraphs as if restated verbatim. Plaintiffs offered its Live Broadcast over at least one cable system on a pay-per-

or received, or assisted in intercepting or receiving, Plaintiffs Live Broadcast. 41. Defendants were not authorized to intercept or receive, or assist in intercepting or

receiving, Plaintiffs Live Broadcast. 42. Upon information and belief, Defendants acted willfully and for purposes of

commercial advantage or private financial gain. 43. 44. Defendants wrongful conduct constitutes a violation of 47 U.S.C. 553. As a direct and proximate result of Defendants violation of 47 U.S.C. 553,

Plaintiff has suffered damages including lost profits. 45. Pursuant to 47 U.S.C. 553, Plaintiff is entitled to recover from Defendants its

actual damages plus Defendants profits or statutory damages up to $50,000. 46. Pursuant to 47 U.S.C. 553, Plaintiff is entitled to recover the costs of this action,

including its reasonable attorneys fees. SECOND CAUSE OF ACTION (Unauthorized Publication or Use of Communications (47 U.S.C. 605)) 47. 48. Plaintiff hereby incorporates the preceding paragraphs as if restated verbatim. Plaintiffs offered its Live Broadcast over at least one satellite system on a pay-

per-view basis to households in multiple states within the United States.

7 Case 3:12-cv-00131 Document 1 Filed 02/27/12 Page 7 of 14

49.

The transmission of the Live Broadcast over said at least one satellite system was

either encrypted or a marketing system was established under which an agent has been designated for the purpose of authorizing private viewing of the Live Broadcast by individuals on a pay-per-view basis. 50. Defendants have received, assisted in receiving, transmitted, or assisted in

transmitting Plaintiffs Live Broadcast. 51. Without authorization from Plaintiff, Defendants have intercepted Plaintiffs Live

Broadcast and have divulged or published the existence, contents, substance, purport, effect or meaning of the Live Broadcast to others. 52. Without authorization from Plaintiff, Defendants have received or assisted in

receiving Plaintiffs Live Broadcast and used the Live Broadcast, or the information contained therein, for their own benefit or for the benefit of others not entitled thereto. 53. Having received from their users Plaintiffs Live Broadcast, Defendants

unlawfully divulged or published the existence, contents, substance, purport, effect, or meaning of the Live Broadcast. 54. Having received from their users Plaintiffs Live Broadcast, Defendants used the

Live Broadcast for their own benefit or for the benefit of another not entitled thereto. 55. Upon information and belief, Defendants acted willfully and for purposes of

commercial advantage or private financial gain. 56. 57. Defendants wrongful conduct constitutes a violation of 47 U.S.C. 605. As a direct and proximate result of Defendants violation of 47 U.S.C. 605,

Plaintiff has suffered damages including lost profits.

8 Case 3:12-cv-00131 Document 1 Filed 02/27/12 Page 8 of 14

58.

Pursuant to 47 U.S.C. 605, Plaintiff is entitled to recover from Defendants its

actual damages plus Defendants profits or statutory damages up to $100,000. 59. Pursuant to 47 U.S.C. 605, Plaintiff is entitled to recover the costs of this action,

including its reasonable attorneys fees. THIRD CAUSE OF ACTION (Copyright Infringement Public Performance) 60. 61. Broadcast. 62. Defendants unlawfully, willfully and without authorization from Plaintiff publicly Plaintiff hereby incorporates the preceding paragraphs as if restated verbatim. Plaintiff owns the exclusive right to publicly perform its copyrighted Live

performed Plaintiffs Live Broadcast. 63. Defendants have thereby infringed Plaintiffs copyright in the Live Broadcast in

violation of 17 U.S.C. 501. 64. As a direct and proximate result of Defendants infringement of Plaintiffs

copyright in the Live Broadcast, Plaintiff has suffered damages including lost profits. 65. Pursuant to 17 U.S.C. 504(a), Plaintiff is entitled to recover its actual damages

plus Defendants profits or statutory damages up to $150,000. 66. Pursuant to 17 U.S.C. 505, Plaintiff is entitled to recover the costs of this action,

including its reasonable attorneys fees. FOURTH CAUSE OF ACTION (Copyright Infringement Public Display) 67. Plaintiff hereby incorporates the preceding paragraphs as if restated verbatim.

9 Case 3:12-cv-00131 Document 1 Filed 02/27/12 Page 9 of 14

68. Broadcast. 69.

Plaintiff owns the exclusive right to publicly display its copyrighted Live

Defendants unlawfully, willfully and without authorization from Plaintiff publicly

displayed Plaintiffs Live Broadcast. 70. Defendants have thereby infringed Plaintiffs copyright in the Live Broadcast in

violation of 17 U.S.C. 501. 71. As a direct and proximate result of Defendants infringement of Plaintiffs

copyright in the Live Broadcast, Plaintiff has suffered damages including lost profits. 72. Pursuant to 17 U.S.C. 504(a), Plaintiff is entitled to recover its actual damages

plus Defendants profits or statutory damages up to $150,000. 73. Pursuant to 17 U.S.C. 505, Plaintiff is entitled to recover the costs of this action,

including its reasonable attorneys fees. FIFTH CAUSE OF ACTION (Copyright Infringement Reproduction) 74. 75. 76. Plaintiff hereby incorporates the preceding paragraphs as if restated verbatim. Plaintiff owns the exclusive right to reproduce its copyrighted Live Broadcast. Defendants unlawfully, willfully and without authorization from Plaintiff

reproduced Plaintiffs Live Broadcast. 77. Defendants have thereby infringed Plaintiffs copyright in the Live Broadcast in

violation of 17 U.S.C. 501. 78. As a direct and proximate result of Defendants infringement of Plaintiffs

copyright in the Live Broadcast, Plaintiff has suffered damages including lost profits.

10 Case 3:12-cv-00131 Document 1 Filed 02/27/12 Page 10 of 14

79.

Pursuant to 17 U.S.C. 504(a), Plaintiff is entitled to recover its actual damages

plus Defendants profits or statutory damages up to $150,000. 80. Pursuant to 17 U.S.C. 505, Plaintiff is entitled to recover the costs of this action,

including its reasonable attorneys fees. SIXTH CAUSE OF ACTION (Copyright Infringement Distribution) 81. 82. 83. Plaintiff hereby incorporates the preceding paragraphs as if restated verbatim. Plaintiff owns the exclusive right to distribute its copyrighted Live Broadcast. Defendants unlawfully, willfully and without authorization from Plaintiff

distributed to their users Plaintiffs Live Broadcast. 84. Defendants have thereby infringed Plaintiffs copyright in the Live Broadcast in

violation of 17 U.S.C. 501. 85. As a direct and proximate result of Defendants infringement of Plaintiffs

copyright in the Live Broadcast, Plaintiff has suffered damages including lost profits. 86. Pursuant to 17 U.S.C. 504(a), Plaintiff is entitled to recover its actual damages

plus Defendants profits or statutory damages up to $150,000. 87. Pursuant to 17 U.S.C. 505, Plaintiff is entitled to recover the costs of this action,

including its reasonable attorneys fees. SEVENTH CAUSE OF ACTION (Inducement of Copyright Infringement) 88. 89. Plaintiff hereby incorporates the preceding paragraphs as if restated verbatim. Defendants users have directly infringed Plaintiffs exclusive rights in its

copyrighted Live Broadcast by uploading and downloading the Live Broadcast from Defendants

11 Case 3:12-cv-00131 Document 1 Filed 02/27/12 Page 11 of 14

websites and by publicly performing and displaying the Live Broadcast unlawfully obtained by said users from Defendants. 90. By their clear expression and affirmative steps, Defendants have unlawfully and

willfully induced their users into infringing Plaintiffs exclusive rights in its copyrighted Live Broadcast. 91. Defendants are therefore liable to Plaintiff for their users direct infringement of

Plaintiffs exclusive rights in its copyrighted Live Broadcast. 92. As a direct and proximate result of Defendants inducement to infringe Plaintiffs

copyright in the Live Broadcast, Plaintiff has suffered damages including lost profits. 93. Pursuant to 17 U.S.C. 504(a), Plaintiff is entitled to recover its actual damages

plus Defendants profits or statutory damages up to $150,000. 94. Pursuant to 17 U.S.C. 505, Plaintiff is entitled to recover the costs of this action,

including its reasonable attorneys fees. EIGHTH CAUSE OF ACTION (Contributory Copyright Infringement) 95. 96. Plaintiff hereby incorporates the preceding paragraphs as if restated verbatim. Defendants users have directly infringed Plaintiffs exclusive rights in its

copyrighted Live Broadcast by uploading and downloading the Live Broadcast from Defendants websites and by publicly performing and displaying the Live Broadcast unlawfully obtained by said users from Defendants. 97. Defendants have unlawfully and willfully enabled, induced, facilitated and

materially contributed to each act of infringement by their users.

12 Case 3:12-cv-00131 Document 1 Filed 02/27/12 Page 12 of 14

98.

Defendants are therefore liable as contributory copyright infringers for the

infringing acts of their users. 99. Defendants are therefore liable to Plaintiff for their users direct infringement of

Plaintiffs exclusive rights in its copyrighted Live Broadcast. 100. As a direct and proximate result of Defendants contributory infringement of

Plaintiffs copyright in the Live Broadcast, Plaintiff has suffered damages including lost profits. 101. Pursuant to 17 U.S.C. 504(a), Plaintiff is entitled to recover its actual damages

plus Defendants profits or statutory damages up to $150,000. 102. Pursuant to 17 U.S.C. 505, Plaintiff is entitled to recover the costs of this action,

including its reasonable attorneys fees. NINTH CAUSE OF ACTION (Vicarious Copyright Infringement) 103. 104. Plaintiff hereby incorporates the preceding paragraphs as if restated verbatim. Defendants users have directly infringed Plaintiffs exclusive rights in its

copyrighted Live Broadcast by uploading and downloading the Live Broadcast from Defendants websites and by publicly performing and displaying the Live Broadcast unlawfully obtained by said users from Defendants. 105. Defendants have the right and ability to supervise their users infringing conduct,

and to prevent their users from infringing Plaintiffs copyrighted Live Broadcast. 106. 107. Defendants are therefore vicariously liable for the infringing acts of their users. Defendants are therefore liable to Plaintiff for their users direct infringement of

Plaintiffs exclusive rights in its copyrighted Live Broadcast.

13 Case 3:12-cv-00131 Document 1 Filed 02/27/12 Page 13 of 14

108.

As a direct and proximate result of Defendants vicarious infringement of

Plaintiffs copyright in the Live Broadcast, Plaintiff has suffered damages including lost profits. 109. Pursuant to 17 U.S.C. 504(a), Plaintiff is entitled to recover its actual damages

plus Defendants profits or statutory damages up to $150,000. 110. Pursuant to 17 U.S.C. 505, Plaintiff is entitled to recover the costs of this action,

including its reasonable attorneys fees.

WHEREFORE, Plaintiff Ark Promotions, Inc. respectfully requests that it be granted relief and judgment against Defendants Justin.tv, Inc., Youtube, LLC, and Youtube, Inc. as follows: 1. trial; 2. 3. Pre-judgment and post-judgment interest as provided by law; The costs of this action, including Plaintiffs attorneys fees, pursuant to 47 An award of either actual or statutory damages in an amount to be determined at

U.S.C. 553 and 605 and 17 U.S.C. 505; 4. Such other and further relief as the Court deems just and proper.

Respectfully submitted this 27th day of February, 2012.

s/John C. Nipp________________________ John C. Nipp N.C. State Bar No. 23406 SUMMA, ADDITON & ASHE, P.A. 11610 N. Community House Rd., Ste. 200 Charlotte, NC 28277-2199 Tel: (704)945-6710 Fax: (704)945-6735 Email: jnipp@summalaw.com Attorney for Defendant Ark Promotions, Inc.

14 Case 3:12-cv-00131 Document 1 Filed 02/27/12 Page 14 of 14