Flipboard v. Amorphous Complaint PDF

Case5:15-cv-03255 Document1 Filed07/13/15 Page1 of 9
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DAVID H. KRAMER, State Bar No. 168452

WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
Telephone: (650) 493-9300
Facsimile: (650) 565-5100
dkramer@wsgr.com
Attorneys for Plaintiff Flipboard, Inc.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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FLIPBOARD, INC., a Delaware corporation, )

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Plaintiff,
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v.
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KALLIOPE AMORPHOUS, aka
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MICHELLE WALSH, an individual,
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Defendant.
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Case No.
COMPLAINT FOR
DECLARATORY RELIEF
DEMAND FOR JURY TRIAL
Since 2010, Flipboard Inc. has operated a highly popular online service, affording
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millions of people around the world the ability to view content from around the Internet in a
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visually beautiful environment. It has done so with great respect for the rights of content
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creators, not only fulfilling its legal obligations online, but providing a platform through which
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rights holders can display their creations and profit from them. As a result, Flipboard has
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partnered with all types of global content companies including leading newspapers and news
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services, photographers and galleries, magazines, film studios and more. It was thus with dismay
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that Flipboard received a demand letter from an attorney for Defendant Kalliope Amorphous
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(Defendant), a photographer claiming she was entitled to millions of dollars in damages, and
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threatening to sue Flipboard because, she claimed, photographs that she posted on the Internet
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could be viewed without her authorization through the service.
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COMPLAINT FOR DECLARATORY
RELIEF
Flipboard tried again and again to explain why Defendant was mistaken on the facts and
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the law, pointing out that it did not violate her rights, that it had secured the appropriate licenses,
and that it was operating in accordance with safe-harbor provisions of the Digital Millennium
Copyright Act. But each time Flipboard told Defendants counsel that she was not entitled to some
windfall payoff and made good-faith efforts to resolve this matter amicably, counsels rhetoric and
threats only escalated. Flipboard thus brings this action seeking a declaration that it is not liable to
Defendant and has not violated Defendants copyrights, attribution rights, or others, simply
because Flipboard users can view photographs through the Flipboard service that Defendant
herself posted online.

Flipboard alleges, on personal knowledge as to its own actions and on information and
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belief as to the actions of others, as follows:

NATURE OF THIS ACTION
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This is an action for declaratory judgment of noninfringement pursuant to the Declaratory
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Judgment Act, 28 U.S.C. 2201-2202, the Copyright Act of 1976, 17 U.S.C. 101 et seq., the
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Digital Millennium Copyright Act, 17 U.S.C. 1202, and the Lanham Act, 15 U.S.C. 1051 et
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seq.
THE PARTIES
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1.
Flipboard is a Delaware corporation with its principal place of business at 214
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Homer Ave., Palo Alto, CA 94301. It provides an online service accessible at www.flipboard.com
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and through various mobile platforms, including Apple iOS and Android.
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Defendant is an individual residing in Rhode Island and/or New York. Defendant
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holds herself out as a visual artist with a focus on photography. She has posted her photographs on
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various online services, including Bored Panda, Flickr, and Tumblr. Defendant has also created an
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account on Flipboard.
JURISDICTION AND VENUE
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3.
This court has original jurisdiction over the claim for declaratory relief under
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28 U.S.C. 2201-2202 (the Declaratory Judgment Act) and 17 U.S.C. 101 et seq. (the
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Copyright Act of 1976), 17 U.S.C. 1202 (the Digital Millennium Copyright Act), 15 U.S.C.
RELIEF
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1051 et seq. (the Lanham Act), as well as under 28 U.S.C. 1331 and 1338, because Flipboard
brings the action to determine a question of actual controversy between the parties arising under
the copyright and trademark laws of the United States.
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Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b) because
Flipboard is headquartered in, and a substantial part of the events giving rise to this complaint
occurred in, this judicial district.

BACKGROUND
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Flipboards Social Magazine Platform
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Flipboard is a service provider under the Digital Millennium Copyright Act, 47
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U.S.C. 512 (DMCA) and an interactive computer service under the Communications
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Decency Act, 47 U.S.C 230(c). The Flipboard service allows users to view a variety of online
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content, including images, text, graphics, videos, social media, and links in interactive magazine-
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style layouts and, if they choose, share their personalized collections with others.
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Some of the content that is accessible on and through the Flipboard service is
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stored on the service and made available to users pursuant to express and implied licenses from
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rightsholders.
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Other content accessible via Flipboard has been uploaded to the service at the
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direction of its users. Flipboard hosts that content and makes it accessible to users in accordance
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with the requirements of the Digital Millennium Copyright Act.
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Still more content accessible through the service is not stored on Flipboards
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system at all, but rather is served from other online locations (such as websites like Flickr, Tumblr,
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and Bored Panda), from which Flipboard frames it. In framing content, Flipboard links users to
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the content in a manner such that it is presented to them from the system of another online service
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where the material remains stored, but is made viewable through a frame that Flipboard supplies.
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In doing so, Flipboard often relies on websitess RSS feeds and/or application protocol
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interfaces (APIs). These tools are used by those websites to make content posted on their
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services accessible via other services.
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RELIEF
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As relevant to this case, the content from Bored Panda that was accessible via
Flipboard was accessed from Bored Pandas RSS feed, and Flipboard had express permission to
feature that material. Likewise, Flipboard has express agreements with Flickr and Tumblr to use
their APIs, and it was pursuant to those API agreements that any images posted on Defendants
Flickr and Tumblr pages could be viewed from those services through Flipboard.
Defendants Threats Against Flipboard
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On June 5, 2015, Flipboard received a letter from counsel for Defendant that
charged Flipboard with infringing copyrights that Defendant claimed to own in images that she
had posted to Bored Panda. Defendants counsel claimed that the material posted on Bored Panda
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could be accessed via Flipboard, that that was unauthorized and infringing and that Defendant was
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entitled to millions of dollars in damages as a result.
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Defendants letter made clear that Defendant would sue Flipboard unless Flipboard
paid her an exorbitant amount to settle this specious claim:

[I]t would be simple enough for Ms. Amorphous, my client, to file suit against
Flipboard for copyright infringement and seek the maximum statutory damages for
each work infringed by the willful infringement of Flipboard and its photo editors
in the amount of $150,000 per work infringed.
Ms. Amorphous is entitled to three million dollars in statutory damages for willful
infringement.
Though I have notoriety and success based on my experience litigating copyright
cases, it is often desirable for parties to resolve straightforward copyright
infringement cases without filing suit. This is particularly true in light of the
potential cost of litigating intellectual property cases in federal court.
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As I have noted above, if this matter results in filing a lawsuit, my client will seek
the maximum in statutory damages for willful infringement of 3 million dollars.
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Flipboard responded to Defendants letter on June 10, 2015. In its letter, Flipboard
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explained that: (i) Bored Panda had expressly authorized Flipboards conduct based on an express
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grant of rights from Defendant; (ii) Flipboard was not, in any event, infringing any of Defendants
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copyrights because the content at issue was never copied to, stored on, or displayed on Flipboards
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system; instead, it was simply framed via links to pages on the Bored Panda website where it
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had been posted by Defendant; and (iii) Flipboard was protected from Defendants claims by the
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DMCA safe harbors.

RELIEF
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In response, Defendants counsel: (i) disputed the existence of Bored Pandas
authorization (despite the fact that Flipboard had provided her with copies of the correspondence
documenting it); (ii) ignored Flipboards explanation of why there was no infringement; and (iii)
asserted without further elaboration that Flipboard had no DMCA protection. Defendants counsel
reiterated her demand for payment, and closed by stating: If you feel the matter is at an end,
unfortunately for both our clients our duscussions [sic] will take place in the district court.
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Later the same day (June 16), Defendants counsel came forward with yet more
false accusations. This time, the misguided charge was that Flipboard had improperly scraped
[i.e. taken] images Defendant had posted to online services called Flickr and Tumblr. Defendants
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message closed with a threat: If we do not hear from Flipboard by Friday, we will take
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appropriate legal actions to deal with this illegal activity.
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Flipboard responded later that day to explain that Defendants new allegations
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regarding Flickr and Tumblr were equally misguided, that Flipboard had not scraped any of
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Defendants images from those websites, that the content was merely framed from those services,
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and that Flipboard operated pursuant to express agreements with Flickr and Tumblr that
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authorized Flipboard to present content posted on those services. Flipboard also invited a call to
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dispel Defendants misunderstandings.
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Flipboards attempt at a rapprochement was met with a ranting letter from
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Defendants counsel on June 19 in which counsel invented a host of entirely new, but similarly
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frivolous charges ranging from false association under the Lanham Act, to allegations that
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Flipboard improperly removed copyright management information from Defendants works. And
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the letter closed with this refrain: As you may be aware, I have litigated successfully many
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precedent setting. [sic] I am hopeful, [sic] we can arrive at a reasonable monetary settlement
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without litigation; however, if litigation is necessary, [Defendant] will prevail on summary
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judgment.
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Flipboards counsel arranged another call with Defendants counsel to discuss the
parties disagreement. That call took place on June 23, 2015. When Flipboards counsel asked for
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RELIEF
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information supporting Defendants contentions, Defendants counsel said that she might provide
that information or she might just sue.
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Following the call, on June 24, Defendants counsel wrote to Flipboard stating that
she was willing to settle for one million dollars.

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Flipboard responded on June 30, rejecting Defendants monetary demand, further
refuting the new allegations Defendant had made, and asking for additional information regarding
Defendants copyrighted works and registrations that she claimed had been infringed.
Defendants counsel responded by saying that do[es]nt see the point in going back and forth on
those issues.
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On July 8, Defendants counsel sent information about her clients works on Flickr
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and Tumblr, along with some screenshots showing the ways that Defendant herself had used those
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works in connection with the Flipboard application. Defendant provided no evidence that any
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other Flipboard user had ever accessed any of those works, incorporated them into any Flipboard
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magazine, or used Flipboard to copy or share any of those works.
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In a final attempt to avoid conflict, the parties counsel again spoke on July 13,
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without success in reaching resolution. On that call, counsel for Defendant repeated her demands
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for a million-dollar settlement, even though she could articulate no instances of actual use of her
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works by Flipboards users and had no evidence that her client had suffered any actual harm
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resulting from Flipboards actions. Defendants counsel also said that if Flipboard did not agree to
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her demands or make a monetary offer to settle the dispute, Flipboard would have to make its
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arguments in court.
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In sum, despite good-faith efforts by Flipboard, Defendant and her counsel
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continue to fundamentally misunderstand the nature of the Flipboard service and the ways in
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which Flipboard allows users to view images posted on other online services, including Bored
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Panda, Flickr, and Tumblr. This misunderstanding has fueled Defendants continuing, and
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escalating, stream of misguided claims against Flipboard.
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Flipboard has had enough. Through this declaratory judgment action, Flipboard
seeks to resolve the parties dispute once and for all, resolve Defendants misguided claims of
RELIEF
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copyright infringement and other assorted illegality, remove the cloud of uncertainty created by
Defendants demands and threats, and obtain clarity regarding the parties ongoing rights and
obligations.
FIRST CLAIM FOR RELIEF

(Declaratory Judgment of Non-Liability)
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Flipboard realleges and incorporates by reference the allegations of the preceding
paragraphs as though fully set forth herein.

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In light of Defendants explicit, continuing and false accusations concerning
content accessible to users through the Flipboard service, her demands for millions of dollars and
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her repeated threats to commence litigation against Flipboard if her demands are not met, there is
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an actual controversy between Flipboard and the Defendant as to the parties current and future
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rights and obligations. A judicial determination is necessary and appropriate at this time in order
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to resolve these issues so that the parties may know their rights and ongoing responsibilities.
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With respect to Defendants copyright claims, Defendant contends Flipboard is
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liable for willfully infringing Defendants copyrights in materials Defendant posted to the Bored
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Panda, Flickr and Tumblr online services. Flipboard denies any liability and contends, inter alia,
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that there it has not infringed any of Defendants exclusive rights under section 106 of the
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Copyright Act (17 U.S.C. 106), that any use of Defendants copyrighted worked occurred
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pursuant to licenses from Bored Panda, Flickr, and/or Tumblr, as relevant, and that the DMCA
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safe harbors (17 U.S.C. 512(c) and 512(d)) preclude the imposition of any liability on
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Flipboard.
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Defendant has asserted that Flipboard intentionally removed Defendants
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copyright management information and is liable for violating 17 U.S.C. 1202(b). Flipboard
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denies any such conduct and any such liability, in particular, it denies that it intentionally removed
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or altered any such information and that it knew or had reasonable grounds to know that any such
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removal would induce, enable, facilitate, or conceal any infringement.
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RELIEF
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Defendant contends Flipboard has used Defendants images in connection with
promotional activity to suggest Defendants endorsement of Flipboard and that Flipboard is liable
under the Lanham Act. Flipboard denies any such conduct and any such liability.
PRAYER FOR RELIEF
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WHEREFORE, Flipboard prays for judgment that:
(a)
Declares that Flipboard has not, through operation of its online service, infringed
Defendants rights under the Copyright Act, the Digital Millennium Copyright Act, or the Lanham
Act;
(b)
Declares that Flipboard is not liable to Defendant in any amount;
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(c)
Awards to Flipboard its reasonable costs, disbursements, and attorneys fees
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incurred; and
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Grants such other and further relief as this Court may deem just and proper.
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Dated: July 13, 2015
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By:
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/s David H. Kramer
DAVID H. KRAMER
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RELIEF
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DEMAND FOR JURY TRIAL
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Flipboard hereby demands trial by jury of all issues triable by a jury.
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Dated: July 13, 2015

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By:
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/s David H. Kramer
DAVID H. KRAMER
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RELIEF
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Case5:15-cv-03255 Document1 Filed07/13/15 Page1 of 9

DAVID H. KRAMER, State Bar No. 168452

FLIPBOARD, INC., a Delaware corporation, )

could be viewed without her authorization through the service.

Case5:15-cv-03255 Document1 Filed07/13/15 Page2 of 9

herself posted online.

belief as to the actions of others, as follows:

This is an action for declaratory judgment of noninfringement pursuant to the Declaratory

Flipboard is a Delaware corporation with its principal place of business at 214

Defendant is an individual residing in Rhode Island and/or New York. Defendant

Case5:15-cv-03255 Document1 Filed07/13/15 Page3 of 9

the copyright and trademark laws of the United States.

Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b) because

occurred in, this judicial district.

Flipboards Social Magazine Platform

Flipboard is a service provider under the Digital Millennium Copyright Act, 47

with the requirements of the Digital Millennium Copyright Act.

services accessible via other services.

Case5:15-cv-03255 Document1 Filed07/13/15 Page4 of 9

Defendants Threats Against Flipboard

entitled to millions of dollars in damages as a result.

paid her an exorbitant amount to settle this specious claim:

DMCA safe harbors.

Case5:15-cv-03255 Document1 Filed07/13/15 Page5 of 9

In response, Defendants counsel: (i) disputed the existence of Bored Pandas

appropriate legal actions to deal with this illegal activity.

dispel Defendants misunderstandings.

Flipboards attempt at a rapprochement was met with a ranting letter from

without litigation; however, if litigation is necessary, [Defendant] will prevail on summary

Case5:15-cv-03255 Document1 Filed07/13/15 Page6 of 9

that information or she might just sue.

she was willing to settle for one million dollars.

Flipboard responded on June 30, rejecting Defendants monetary demand, further

magazine, or used Flipboard to copy or share any of those works.

In sum, despite good-faith efforts by Flipboard, Defendant and her counsel

escalating, stream of misguided claims against Flipboard.

Case5:15-cv-03255 Document1 Filed07/13/15 Page7 of 9

FIRST CLAIM FOR RELIEF

Flipboard realleges and incorporates by reference the allegations of the preceding

paragraphs as though fully set forth herein.

In light of Defendants explicit, continuing and false accusations concerning

With respect to Defendants copyright claims, Defendant contends Flipboard is

Defendant has asserted that Flipboard intentionally removed Defendants

removal would induce, enable, facilitate, or conceal any infringement.

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Defendant contends Flipboard has used Defendants images in connection with

WHEREFORE, Flipboard prays for judgment that:

Declares that Flipboard is not liable to Defendant in any amount;

Awards to Flipboard its reasonable costs, disbursements, and attorneys fees

Dated: July 13, 2015

WILSON SONSINI GOODRICH & ROSATI

Attorneys for Plaintiff Flipboard, Inc.

Case5:15-cv-03255 Document1 Filed07/13/15 Page9 of 9

DEMAND FOR JURY TRIAL

Flipboard hereby demands trial by jury of all issues triable by a jury.

Dated: July 13, 2015

WILSON SONSINI GOODRICH & ROSATI

Attorneys for Plaintiff Flipboard, Inc.

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