Federal Court, Dallas, Texas - December 4, 1995
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
THIRD PLANET PUBLISHING, INC. :
Plaintiff :
:
v. : CASE NUMBER: 4:95CV328
:
JEFF PULVER AND PERFORMANCE :
SYSTEMS INTERNATIONAL, INC., :
Defendants :
VERIFIED COMPLAINT
TO THE HONARABLE COURT:
NOW COMES, Third Plant Publishing, Inc., Plaintiff, complaining of
Defendants Jeff Pulver (referered to herein as "Pulver") and Performance
Systems, Inc. (referred to herein as "PSI"), and would respectfully show the
court as follows:
Parties
1. Plaintiff Third Planet Publishing, Inc. is a Florida
corporation with its principal place of business in Dallas, Texas.
2. Defendant Jeff Pulver is an individual who appears to be a
non-resident, has engaged in business in the State of Texas out of which
Plaintiff's cause of action arises and has not designated an agent for
service of process in the State. Accordiningly, he has now appointed the
Secretary of State for the State of Texas as his agent for service of
process under Texas Civil Pratice and Remedies Code 17.044. Mr. Pulver
claims his home address is 2 Brookbridge Road, Great Neck, NY 11021.
3. Defendant Performance Systems, Inc. ("PSI") is a New York
corporation with its principal place of business in Herndon, Virginia.
Defendant PSI may be served by serving its registered agent, CT
Corporation System, 3350 North St. Paul Street, Dallas, Texas 750201.
Jurisdiction and Venue
4. This action includes, inter alia cliams for infringement of
copyright. Jurisdiction is therefore provided unser 28 U.S.C. 1331
& 1338(a). Complaint is also made in this action for misappropriation
of trade secrets and related cause of action. This Honorable Court has
pendent jurisdiction over such claims.
5. Venue is proper in this district and division under 28 U.S.C.
1391(b) & (c) in that a substantial part of the events giving rise to the
claims in this action accurred in this district and division, and the
intellectual property which is the subject of this action is situated
in this district and division.
Background Facts
6. Plaintiff is in the business of developing and licensing
products in the telecommunications industry. One of Plaintiff's
primary products is known as the "Digiphone". This product permits
the full duplexing of the human voice for converstation over the Internet.
7. With the use of the Digiphone product, Internet users are able
to communicate by voice over the Intenet rather than by utilizing
long distance telephone services.
8. The ability to talk over the Internet is facilitated by
proprietary program algrithms which, in effect, compress, send and
uncompress voice data real time using a microphone, and speakers
and the user's computer system and software.
9. The Digiphone system is used in connection with standard
multimedia programs and hardware. The Digiphone system communicates and
drives such multimedia programs and hardware by virtue of software which
permits such communication. Same is commonly referred to as a "driver".
10. This driver for the Digiphone program is a "full duplex" driver
which permits voice communciation. It is a highly proprietary driver and
is protected as a trade secret.
11. The driver for the Digiphone program is also protected by
copyright as an unpublished work of authorship. The source code for the
driver software is thus highly confidential and trade secret information
belonging to Plaintiff.
12. Within recent days, Plaintiff became aware that the
Defendants had posted Plaintiff's proprietary work of authorship (the
driver) on his "page" of the Internet through the access provider,
Defendant, PSI. Defendant Pulver thereby permitted and encouraged users
of the Internet to download the driver software (including confidential
source code) onto their own computer systems.
13. Neither Defenants, nor anyone else who may have downloaded the
software, are licensed to have the source code to the driver software.
Instead, persons who purchase the Digiphone and become licensees to use
same simply obtain what is known as a "run-time version" of the driver. As
such, they do not have access to the source code for the driver software.
14. However, Defenants have apparently somehow obtained access to
the trade secret code of the driver software. Upon information and belief,
Defendants has permitted Internet users to obtain same.
15. These activities of Defendants are entirely unauthorized
by Plaintiff.
16. Futher proliferation and copying of the unauthorized driver
software and source code will irreparably damage Plaintiff and destory the
value of Plaintiff's product and software in the marketplace unless Plaintiff
is granted immediate injuntive relief by this Honorable Court.
17. There has been a large expenditure of time and money and research
and development expense in the development of the Digiphone program and
its driver. If Defendants and others are premitted to infringe on the
copyright of same and misappropriate same to their use, extraordinary damages
which will be incalculable and irreparable will occur to plaintiff.
18. Plaintiff is the owner of the federally registered copyright in
and to the computer systems made the subject of this suit, including the
driver. Attached thereto as Exhibit "A" is a true and correct copy of the
certificate of registration for the computer software. The copyright to same
was assigned by John Stewart Martin, the copyright claimant to Singlenesia
Software, an assumed business name of EIJA, Inc., a corporation formed under
the laws of the State of Oregon. Thereafter, Plaintiff entered into an
agreement whereby said copyright was assigned to Plaintiff. Plaintiff is
now the owner of said copyright.
19. When Plaintiff learned that Defendants had misappropriated and
were using and proliferating Plaintiff's proprietary copyrighted trade
secret information, Plaintiff immediately notified the Defendants and made
demand that Defendants cease that use and proliferation. Defendant PSI
responded that it was "not in a position to take the actions you have
demanded." Defendant Pulver apparently later took the driver software code
off of his page on the Internet. However, during the critical time that the
proprietary information was posted on the Internet, it was possible for the
users of the Internet to download the trade secret code of the driver, and
such trade secret information has been proliferated without authorization
of Plaintiff, the owner. Defendant Pulver has refused to provide Plaintiff
information as to where that trade secret information has been proliferated
despite Plaintiff's request and demand.
20. Plaintiff urgently needs all the information as to there its
confidential and copyrighted works of authorship have been proliferated so
as to assure that no further misappropriation or infringement occurs.
21. For this reason, Plaintiff seeks the assistance of this Honorable
Court to protect its confidential and copyrighted information.
Count 1
Copyright Infringement
22. Plaintiff incorporates the pleadings in paragraph 1 through
20 by reference.
23. On information and belief, Defendants have proliferated
and used Plaintiff's copyrighted works of authorship without the
authority to do so.
24. Plaintiff, as the owner of the copyrighted works of authorship,
has the exclusive right to reproduce the copyrighted work in copies and
to distribute same under 17 U.S.C. 106. Accordingly, because Defendants have
violated these exlcusive rights of Plaintiff, Defendants have commited
infringement of Plaintiffs copyright under 17 U.S.C. 501.
25. As a result of the copyright infringement which has occurred,
Plaintiff has suffered damages for which it now sues. At this time,
Plaintiff does not know the precise amount of those damages, but upon
information and belief, alleges that they are in excess of $50,000.00,
exclusive of interest and costs. Plaintiff also seeks the statutory damages
provided for in the Copyright Act.
Count 2
Missappropriation of Trade Secrets
26. All the previous allegations herein are incorporated by
reference.
27. The software programs, including the source code of the
driver in question, are protected by Plaintiff as trade secrets and same
constitute confidential information belonging to Plaintiff.
28. Based on the information described above and the belief that
Plaintiff has, it is alledged that Defendants have misappropriated and
profliferated Plaintiff's trade secrets and confidential information as
described above.
29. As a result of such misappropriation and proliferation of
Plaintiff's confidential information, Plaintiff believes that is has suffered
damages. The precise amount of those damages is unknown, but upon
information and belief, Plaintiff believes that such damages are in
excess of $50,000.00, exclusive of interest and costs.
Injunctive Relief
30. Plaintiff incorporates the allegations set forth in paragraphs
1 through 29 by reference.
31. Based upon the foregoing information, Plaintiff has suffered
and will continue to suffer irreparable damges unless Plaintiff is granted
injuntive relief by this Honorable Court.
32. If Plaintiff is unable to stop the proliferation of its
confidential information and further copyright infringement, it will suffer
irreparable damages. For this harm and damage, Plaintiff has no adequate
remedy at law. These damages are continuing, and to a large degree will be
incalculable.
33. Plaintiff therefore requests the Court to enter a preliminary
injunction enjoining the Defendants, their agents, servants, employees,
and those acting in concert with them from the following:
a. Posting on the Internet, or anywhere else, Plaintif's
confidential copyrighted information, including
Plaintiff's full duplex driver for Plaintiff's Digiphone;
b. Withholding from Plaintiff any and all copies of the driver,
including source code, object code, documentation, and any and all
other documents and information relating to the full duplex driver
or to the Digiphone;
c. Withholding form Plaintiff information as to who has
possession of copies of any of the full duplex driver information,
including source code, object code, documentation and any information
associated with the full duplex driver or Digiphone;
d. Withholding from Plaintiff the names and information as to the
location of persons who accessed Defenant Pulver's page on the
Internet and obtained or downloaded computer software or other works
of authorship relating to the full duplex driver of Plaintiff or
Digiphone;
e. Infringing on any of Plaintiff's copyrighted works of authorship,
including the full duplex driver belonging to Plaintiff and
associated with Digiphone;
f. Further misappropriating from Plaintiff any of Plaintiff's
confidential information, including but not limited to: the full
duplex driver associated with Digiphone.
34. Plaintiff further requests upon trial of this cause, that
the preliminary injunction be made into a Permanent Injuction so enjoining
the Defendants.
Prayer
WHEREFORE, premises considered, Plaintiff prays:
1. That Defendants be cited to appear and answer herein;
2. For judgement against Defendants for Plaintiff's damages;
3. For a Preliminary Injuction and Permanent Injunction as set
forth above;
4. For reasonable and necessary attorney's fees;
5. For prejudgement and post-judgement interest;
6. For costs of court; and
7. For such other and further relief to which Plaintiff may
show itself entitled.
Respectfully submitted,
Mack Ed Swindle
SBN: 19587500
Thomas F. Harkins, Jr.
SBN: 9000990
David R. Childress
SBN: 04199480
MICHENER LARIMORE SWINDLE
WHITAKER FLOWERS SAWYER
REYNOLDS & CHALK, L.L.P.
301 Commerce Street, Suite 3500
Fort Worth, Texas 76102
(817) 335-4417
(817) 335-6935 FAX