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Case 2:13-cv-02072-LKK-CMK Document 1 Filed 10/07/13 Page 1 of 10

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NAOMI JANE GRAY (SBN 230171) HARVEY SISKIND LLP

Four Embarcadero Center, 39th Floor


San Francisco, California 941 1 1 Telephone: (415) 354-0100

Facsimile: (415)391-7124
ngray@harveysiskind.com

Attorneys for Plaintiff


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7 8 9 UNITED STATES DISTRICT COURT ASHLEY CANDLER

EASTERN DISTRICT OF CALIFORNIA

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Case No.

Plaintiff,
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COMPLAINT

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SHANNON CARTER, an individual,

Defendants

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COMPLAINT

Case No:

Case 2:13-cv-02072-LKK-CMK Document 1 Filed 10/07/13 Page 2 of 10


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Plaintiff Ashley Candler ("Candler"), by and through her attorneys, Harvey Siskind LLP,
alleges as follows:
JURISDICTION AND VENUE

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This action arises under the Copyright Act, 17 U.S.C. 101 et seq. This Court has

jurisdiction over this action pursuant to 28 U.S.C. 1338(b) and 1367.

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2.

This Court has personal jurisdiction over Defendant because Defendant explicitly

consented to the jurisdiction of this Court in a Digital Millennium Copyright Act ("DMCA")

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countemotice submitted to YouTube pursuant to 17 U.S.C. 512 (g). Moreover, on information and belief, Defendant resides in the State of California, engaged in the infringing acts alleged herein
within the State of California, and caused harm to Candler within the State of California.

3.

Venue is proper in the Eastern District pursuant to 28 U.S.C. 1391 and 1400(a) in

that, on information and belief. Defendant resides in the District; a substantial part of the acts and

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omissions giving rise to Candler's claim occurred in the District; and Defendant may be found in
the District.
PARTIES

4.

Candler is an individual residing in Butte County, California.

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5.

On information and belief. Defendant resides in or around the city of Bakersfield,

county of Kern, California.


INTRODUCTION

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6.

This case stems from Defendant's deliberate and flagrant acts of copyright

infringement. Candler created an adorable video of her toddler son, playing in the bathtub with the
family dogs, and posted it to YouTube for the enjoyment of family and friends. Defendant

promptly copied the video to her own YouTube channel and monetized it by authorizing YouTube

to insert advertisements. These advertisements generate revenue to Defendant each time a viewer
watches the video. The video went viral, and has been viewed on Defendant's YouTube page over
69 million times.

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COMPLAfNT

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7.

Candler sent a DMCA takedown notice to YouTube, resulting in removal of the

video. Defendant, however, submitted a countemotice to YouTube, falsely representing that the
takedown was done as the result of misidentification or mistake. When Candler's counsel

attempted to contact Defendant by certified mail at the address provided by Defendant in the countemotice, Defendant refused to accept delivery of the letter.
8. Candler has tried diligently to resolve her dispute with Defendant without resort to

litigation. Defendant's knowing and willful conduct reflects a determination to continue infringing no matter the consequences, leaving Candler with no choice but to file this Complaint in order to protect her valuable intellectual property rights.
FACTS

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9.

Candler is the mother of a young son. In or around December, 201 0, Candler created

a video entitled "Bath Time Fun." The video displays her toddler son in the bathtub, teasing the family dachshund with a bath toy. The dachshund repeatedly jumps for the toy and misses, causing
Candler's son to laugh adorably. The video lasts approximately a minute. Candler owns U.S.

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Copyright Registration No. PA 1829720 for the video.

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10.

On January 12, 201 1, Candler posted the video to YouTube so that friends and

family could view it.

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The very next day, on January 1 3, 20 1 1 , Defendant copied the video to her publicly

available YouTube channel, sweetfacesjc. In a caption to the video, Defendant claimed that the video showed "my nephew cracking up while teasing the dog with his toy. Original content taken by me with my Droid phone. I own all content copyrights to this video." These statements were
false.

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The video quickly went viral. At the time of this writing, the video had been viewed

on the sweetfacesjc channel over 69 million times.

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On information and belief, in addition to copying and publicly displaying the video

without authorization. Defendant has "monetized" the video by authorizing YouTube to insert

advertisements into the video that play each time the video is clicked. On information and belief.
Defendant is paid each time a viewer watches the video with the advertisements.
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COMPLAINT

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On information and belief, Defendant has also licensed "Bath Time Fun" to third

parties, and/or encouraged third parties to link to "Bath Time Fun" or copy "Bath Time Fun" to third party websites. In addition to YouTube, "Bath Time Fun" has appeared on such websites as
www.mashable.com. www.cafemom.com, and others apparently hosted around the world, all

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without Candler's authorization or knowledge. Some of these third-party websites, such as


www.mashable.com, link directly to "Bath Time Fun" as it appears on Defendant's YouTube channel.

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On May 8,2013, Candler, through her attorneys, served a DMCA takedown notice

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on YouTube pursuant to 17 U.S.C. 512(c)(3). On information and belief, YouTube forwarded the
takedown notice to Defendant, in accordance with its copyright policy and DMCA 512. YouTube disabled access to the video on the sweetfacesjc channel on May 9, 2013.

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Defendant served a DMCA countemotice pursuant to 17 U.S.C. 5 12(g) on May 13,

2013. In that countemotice. Defendant swore under penalty of perjury that she had a "good faith
belief that Candler's video was removed from Defendant's YouTube "due to a mistake or misidentification of the material to be removed or disabled." This statement was false. Defendant

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could not have had such a good faith belief, as she did not create the video and owns no rights in it. 1 7. In the countemotice, Defendant also explicitly consented to the jurisdiction of the

Federal District Court for the district in which her address was located, and provided a post office box address in Bakersfield, California. Defendant's countemotice is annexed hereto as Exhibit A. 18. After YouTube forwarded the countemotice to Candler's counsel, counsel attempted

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to contact Defendant by sending Defendant a letter by certified U.S. mail, return receipt requested,

to the Bakersfield post office box address provided in Defendant's DMCA countemotice. The post office returned the letter to Candler's counsel, stating that Defendant had refused delivery of the

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letter.

Candler's counsel also attempted to contact Defendant by telephone, leaving two voicemail

messages for Defendant on the voicemail associated with the telephone number that Defendant
provided in her DMCA countemotice. Defendant never responded to these messages.

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COMPLAINT

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FIRST CAUSE OF ACTION DIRECT COPYRIGHT INFRINGEMENT 17 U.S.C. 101 ET SEQ.

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Candler realleges and incorporates by reference the allegations contained in paragraphs

1-18 of this Complaint.

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Candler owns, and at all times relevant hereto has owned, copyright in and to the video

"Bath Time Fun."

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Defendant had access to "Bath Time Fun," which was posted to Candler' s publicly

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available YouTube page on January 12, 20 11.

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Without Candler's authorization or knowledge. Defendant copied and posted "Bath

Time Fun" to Defendant's publicly available YouTube page, sweetfacesjc on January 13, 201 1.

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Candler notified Defendant that Defendant' s actions infringed Candler' s rights in "Bath

Time Fun" by serving a DMCA takedown notice on YouTube in compliance with 17 U.S.C. 512(c).

On information and belief, YouTube forwarded this takedown notice to Defendant, in accordance with
its copyright infringement policy and 17 U.S.C. 512.

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Defendant served a countemotice on YouTube pursuant to 17 U.S.C. 512(g), falsely

claiming that "Bath Time Fun" had been taken down due to mistake or misidentification. As a result. Defendant caused YouTube to restore access to "Bath Time Fun" on her YouTube channel,

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sweetfacesjc. Defendant has continued to engage in infringing conduct by continuing to display "Bath
Time Fun" on her YouTube channel.

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As a result of her infringing conduct. Defendant has realized and continues to realize

profits and other benefits rightfully belonging to Candler. Candler has suffered and will continue to suffer severe and irreparable damage as a result of Defendant's actions. Accordingly, Candler seeks an award of damages pursuant to 17 U.S.C. 504, in an amount to be determined. Candler also seeks preliminary and permanent injunctive relief, restraining Defendant from further violating Candler's
copyright.

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COMPLAINT

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SECOND CAUSE OF ACTION CONTRIBUTORY COPYRIGHT INFRINGEMENT 17 U.S.C. 101 ET SEQ.

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Candler realleges and incorporates by reference the allegations contained in paragraphs

1-25 of this Complaint.

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Candler owns, and at all times relevant hereto has owned, copyright in and to the video

"Bath Time Fun."

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Defendant had access to "Bath Time Fun," which was posted to Candler's publicly

available YouTube page on January 12, 201 1.

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29.

Without Candler's authorization or knowledge, on information and belief. Defendant

licensed "Bath Time Fun" to third parties, and/or encouraged third parties to link to "Bath Time Fun" or copy "Bath Time Fun" to third party websites. Thus, Defendant knew that these third

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parties were engaging in acts of direct copyright infringement, and participated substantially in the
infringing activities.

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30.

As a result of her infringing conduct, Defendant has realized and continues to realize

profits and other benefits rightfully belonging to Candler. Candler has suffered and will continue to suffer severe and irreparable damage as a result of Defendant's actions. Accordingly, Candler seeks an

award of damages pursuant to 17 U.S.C. 504, in an amount to be determined. Candler also seeks
preliminary and permanent injunctive relief, restraining Defendant from further violating Candler's
copyright. THIRD CAUSE OF ACTION
MISREPRESENTATION

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17 U.S.C. 101 ET SEQ.

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Candler realleges and incorporates by reference the allegations contained in paragraphs

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1-30 of this Complaint.

32.

Candler owns, and at all times relevant hereto has owned, copyright in and to the video

"Bath Time Fun."

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COMPLAINT

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33.

Defendant had access to "Bath Time Fun," which was posted to Candler's publicly

available YouTube page on January 12, 201 1.

34.

Without Candler's authorization or knowledge, Defendant copied and posted "Bath

Time Fun" to Defendant's publicly available YouTube page, sweetfacesjc on January 13, 201 1. 35.
512(c).

Candler served a DMCA takedown notice on YouTube in compliance with 17 U.S.C.

36.

Defendant served a countemotice on YouTube pursuant to 17 U.S.C. 5 12(g), falsely

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claiming that "Bath Time Fun" had been taken down due to mistake or misidentification. Defendant knew that these statements were false when she made them. In reliance on Defendant's false

statements in the countemotice, YouTube restored access to "Bath Time Fun" on Defendant's
YouTube channel, sweetfacesjc. 37. As a result of YouTube's restoration of "Bath Time Fun" to Defendant's YouTube

channel. Defendant has realized and continues to realize profits and other benefits rightfully belonging

to Candler. Candler has suffered and will continue to suffer severe and irreparable damage as a result
of Defendant's actions. Accordingly, Candler seeks an award of damages, including costs and attorneys' fees, pursuant to 17 U.S.C. 5 12(f), in an amount to be determined.
FOURTH CAUSE OF ACTION UNFAIR COMPETITION

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GAL. BUS & PROF. CODE 17200 ET SEQ.

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Candler realleges and incorporates by reference the allegations contained in paragraphs

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1-37 of this Complaint.

39.

Defendant's acts described above constitute unfair competition in violation of

California Business & Professions Code 17200 et seq. (the "Unfair Practices Act"). The Unfair

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Practices Act provides that unfair competition shall mean and include "unlawful, unfair or fraudulent
act or practice."

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Defendant has engaged in unlawful and fraudulent conduct which constitutes unfair

competition. This conduct includes, but is not limited to, (1) engaging in direct and contributory

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COMPLAINT

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copyright infringement in violation of U.S.C. 101 et seq.; and (2) submitting false and misleading
statements to YouTube in connection with her DMCA countemotice.

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Defendant's acts of unfair competition have caused and will continue to cause Candler

irreparable harm. Candler has no adequate remedy of law for Defendant's unfair competition. 42. Candler is entitled to a judgment enjoining and restraining Defendant from engaging in

further acts of unfair competition.


PRAYER FOR RELIEF

WHEREFORE, Candler prays for relief as follows: 1. Entry of an order and judgment requiring that Defendant and her agents, and all other

persons acting in concert with her, be restrained and enjoined from reproducing, distributing, displaying or using in any manner the video entitled "Bath Time Fun" or any derivatives thereof;
and

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2.

An award of damages, costs and attorneys' fees pursuant to 17 U.S.C. 504 and

512(f), in an amount to be determined.


JURY TRIAL DEMAND

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Candler hereby requests a trial by jury.

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Dated: October 7, 2013

HARVEY SISKIND LLP


NAOMI JANE GRAY

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By:
Naomi Jane Gray

Attorneys for Plaintiff


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COMPLAINT

Case No:

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EXHIBIT A

Case 2:13-cv-02072-LKK-CMK Document 1 Filed 10/07/13 Page 10 of 10 Naomi Jane Gray

From: YouTube Service [mailto:copyright@youtube.com] Sent: Monday, May 13, 2013 11:14 AM To: Marissa Lara Subject: Re: [#1282793171] New Copyright Counter-Notification

Hi there, We received the attached counter notification in response to a complaint you filed with us. We're providing you with the counter notification and await your notice (in not more than 10 business days) that you've filed an action seeking a court order to restrain the counter notifier's allegedly infringing activity. Such notice should be submitted by replying to this email. If we don't receive notice from you, we may reinstate the material to YouTube. If you have any questions, please contact copyright@youtube.com. Sincerely, The YouTube Team Counter-Notification as follows: Videos included in counter-notification: http://www.youtube.com/watch?v=GMuZdN84PJg http://www.youtube.com/watch?v=fw5vgr4rRco Display name of uploader: sweetfacesjc I swear, under penalty of perjury, that I have a good faith belief the material was removed due to a mistake or misidentification of the material to be removed or disabled. I consent to the jurisdiction of the Federal District Court for the district in which my address is located, or if my address is outside of the United States, the judicial district in which YouTube is located, and will accept service of process from the claimant. Shannon Carter PO BOX 9664 Bakersfield, CA 93389 shannonsjc@gmail.com 3233013636

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