Original Complaint in Twentieth Century Fox et al. v. Scour.
U.S. District Court, SDNY, Case No. _____.
Date filed: July 20, 2000.
Source: RIAA.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

2. On information and belief, the overwhelming majority of material that Scour identifies and makes available for copying through its SX service consists of blockbuster motion pictures, the works of well-known recording artists and songwriters, and other copyrighted works that are being duplicated and distributed without the consent of their owners. Scour’s website brazenly features a banner containing a "Top Five" search list, identifying current hit motion picture titles and music recordings that have been requested most frequently – all (or virtually all) of which titles and recordings Scour knows, or should know, are protected under the copyright laws and not lawfully available for copying and distribution. Among the titles currently available to Scour users are such newly released motion pictures as The Perfect Storm, The Patriot, Gladiator, and Mission: Impossible 2, which are still playing in movie theaters across the United States and are not yet commercially available outside theaters, as well as hit recordings by popular artists such as Britney Spears, Lauryn Hill, Garth Brooks, and Bruce Springsteen. At most times during the day, there are more than 20,000 users logged on to Scour’s service, which makes over 1.8 million files available for downloading, most of them unauthorized and infringing copies.

3. On information and belief, by providing its facilities and services to commit and facilitate infringement, Scour has cultivated an extensive and rapidly growing user base that attracts advertising and investment dollars. The more users Scour can attract, the more pirated works it can offer, and the more attractive it can become to even more potential users and to potential advertisers and investors. Indeed, from April 2000 (when Scour launched its SX service) to May 2000 (the most recent month for which statistics are available), the number of unique visitors to the Scour.com website nearly doubled – from 242,000 per month to 443,000 per month. Thus, Scour’s entire business is built on and profits from the massive, daily infringement that it participates in, enables, and encourages.

4. Scour participates in and facilitates the illegal on-line distribution and copying of motion pictures, sound recordings, and musical compositions that are or will otherwise be available for lawful purchase, rental, or viewing through legitimate channels (e.g., movie theaters, record stores, and authorized on-line distribution sites). Because the Internet offers near-instantaneous access to millions of people worldwide, Scour’s conduct is causing and threatens to continue to cause severe and irreparable harm to the plaintiffs, and to the motion picture, recording, and music publishing industries generally. Among the most pernicious effects of Scour’s unlawful conduct is that it is teaching a generation of consumers that artists and copyright owners have no right to compensation for their work, and that motion pictures, sound recordings, and musical compositions are and should be free to anyone who can find them on the Internet. That view is contrary to the Constitutional foundation of copyright law, which recognizes that copyright protection is necessary to encourage the creation of new works for the public benefit. Free riders such as Scour threaten this system of incentives by depriving copyright owners of the lawful fruits of their labor and investment.

PARTIES, JURISDICTION, AND VENUE

6. Plaintiff Universal City Studios, Inc., is a Delaware corporation and is qualified to transact business in New York.

7. Plaintiff Time Warner Entertainment Company, L.P. is a Delaware limited partnership and has its principal place of business in New York.

8. Plaintiff Sony Pictures Entertainment Inc. is a Delaware corporation and is qualified to transact business in New York.

9. Plaintiff Paramount Pictures Corporation is a Delaware corporation and is qualified to transact business in New York.

10. Plaintiff Metro-Goldwyn-Mayer Studios Inc. is a Delaware corporation and is qualified to transact business in New York.

11. Plaintiff Disney Enterprises, Inc. is a Delaware corporation and is qualified to transact business in New York.

12. Plaintiff Columbia Pictures Industries, Inc., is a Delaware corporation and is qualified to transact business in New York.

13. Plaintiffs Twentieth Century Fox Film Corporation, Universal City Studios, Inc., Time Warner Entertainment Company, L.P., Sony Pictures Entertainment Inc., Paramount Pictures Corporation, Metro-Goldwyn-Mayer Studios Inc., Disney Enterprises, Inc., and Columbia Pictures Industries, Inc. are referred to collectively herein as the "Studio Plaintiffs."

14. Plaintiff Zomba Recording Corporation is a New York corporation with its principal place of business in New York.

15. Plaintiff Warner Bros. Records Inc. is a Delaware corporation and is qualified to transact business in New York.

16. Plaintiff Walt Disney Records is a division of Disney Enterprises, Inc., a Delaware corporation that is qualified to transact business in New York.

17. Plaintiff Virgin Records America, Inc. is a California corporation and is qualified to transact business in New York.

18. Plaintiff UMG Recordings, Inc. is a Delaware corporation and is qualified to transact business in New York.

19. Plaintiff Sony Music Entertainment Inc. is a Delaware corporation with its principal place of business in New York.

20. Plaintiff Motown Record Company, L.P. is a California limited partnership, with its principal place of business in New York.

21. Plaintiff London-Sire Records Inc. is a Delaware corporation with its principal place of business in New York.

22. Plaintiff LaFace Records is a joint venture between Arista Ventures, Inc., a Delaware Corporation with its principal place of business in New York, and LaFace Records, Inc., a Georgia corporation, and is qualified to transact business in New York.

23. Plaintiff Interscope Records is a California general partnership and is qualified to transact business in New York.

24. Plaintiff Hollywood Records, Inc. is a California corporation and is qualified to transact business in New York.

25. Plaintiff Elektra Entertainment Group Inc. is a Delaware corporation with its principal place of business in New York.

26. Plaintiff Capitol Records, Inc. is a Delaware corporation and is qualified to transact business in New York.

27. Plaintiff BMG Music d/b/a The RCA Records Label is a New York general partnership with its principal place of business in New York.

28. Plaintiff Atlantic Recording Corporation is a Delaware corporation with its principal place of business in New York.

29. Plaintiff Arista Records, Inc. is a Delaware corporation with its principal place of business in New York.

30. Plaintiffs Zomba Recording Corporation, Warner Bros. Records Inc., Walt Disney Records, Virgin Records America, Inc., UMG Recordings, Inc., Sony Music Entertainment Inc., Motown Record Company, L.P., London-Sire Records Inc., LaFace Records, Interscope Records, Hollywood Records, Inc., Elektra Entertainment Group Inc., Capitol Records, Inc., BMG Music d/b/a The RCA Records Label, Atlantic Recording Corporation, and Arista Records, Inc. will be referred to collectively herein as the "Record Company Plaintiffs."

31. Plaintiff Jerry Leiber, individually and doing business as Jerry Leiber Music, is a California resident.

32. Plaintiff Mike Stoller, individually and doing business as Mike Stoller Music, is a California resident.

33. Plaintiff Peer International Corporation is a New Jersey corporation with its principal place of business in New York.

34. Plaintiffs Jerry Leiber, individually and doing business as Jerry Leiber Music, Mike Stoller, individually and doing business as Mike Stoller Music, and Peer International Corporation will be referred to collectively herein as the "Music Publisher Plaintiffs."

35. On information and belief, defendant Scour is a Delaware corporation with a principal place of business at 345 N. Maple Drive, Beverly Hills, California 90210.

36. This is a civil action seeking injunctive relief and damages for copyright infringement under the federal Copyright Act, 17 U.S.C. § 101 et seq., and for misappropriation and unfair competition under state law.

37. This Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C. § 1338(a) and (b), and pursuant to the supplemental jurisdiction provisions of 28 U.S.C. § 1367.

38. This Court has personal jurisdiction over Scour. On information and belief, Scour solicits, transacts, and is doing business within the State of New York; has committed tortious acts both within and outside New York causing injury in New York; and is regularly doing or soliciting business or engaging in a persistent course of conduct in this State. Scour expects or reasonably should expect its conduct to have consequences in the State, and it derives substantial revenue from interstate commerce. Among other things, Scour has facilitated and encouraged the infringement of plaintiffs’ copyrights in motion pictures, sound recordings, and musical compositions in New York. In addition, Scour operates an interactive service that encourages and allows New York residents to download illegal copies of plaintiffs’ works. Scour has caused harm to plaintiffs in New York, where many of the plaintiffs reside, and where potential purchasers, renters, or paying consumers of plaintiffs’ works are thereby diverted away from legitimate transactions. Plaintiffs’ claims arise out of the conduct that gives rise to personal jurisdiction over Scour.

39. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and 28 U.S.C. § 1400(a), because (a) this is a judicial district in which a substantial part of the events giving rise to the claims occurred, and/or (b) this is a judicial district in which defendant resides or may be found.

FACTS COMMON TO ALL CLAIMS FOR RELIEF

41. The Studio Plaintiffs have invested and continue to invest enormous sums of money and the time and efforts of their business, production, and creative personnel to discover and acquire the rights to literary and other properties suitable for development as motion pictures; to develop such properties into motion pictures; to advertise, promote, distribute, publicly perform, and display such motion pictures; and to advertise, market, sell, and/or license the right to sell copies of such motion pictures in authorized formats (such as videocassettes, laser discs, and DVDs). In order to create motion pictures, the Studio Plaintiffs make substantial payments to all of the entities and personnel involved in the foregoing activities, including to various trust funds established for the benefit of the actors, technicians, laborers, and other personnel involved in the production of motion pictures. The Studio Plaintiffs are compensated for their creative and business efforts and investments principally from the receipts derived from theatrical exhibition, license fees paid by broadcasters, cable and other pay television operators, and other licensees, and sales in the home video market, both in this country and abroad. Without such revenue sources, the monies needed to create motion pictures would be lost, many motion pictures would not be produced, and the quality and diversity of those produced would be substantially reduced. The ultimate result would be to diminish the public’s access to a wide variety of high-quality motion pictures.

42. The Studio Plaintiffs are the copyright owners or owners of exclusive reproduction, adaptation, and/or distribution rights under United States copyright with respect to certain copyrighted motion pictures, including but not limited to those listed on Exhibit A (the "Copyrighted Motion Pictures"), each of which is the subject of a valid Certificate of Copyright Registration from the Register of Copyrights. On information and belief, Scour has made each of the motion pictures listed in Exhibit A, as well as other copyrighted motion pictures owned by the Studio Plaintiffs, available for unlawful and unauthorized copying and distribution over the Internet.

The Record Company Plaintiffs’ Business

44. The Record Company Plaintiffs have invested and continue to invest substantial sums of money, time, effort, and creative talent to discover and develop recording artists, and to create, manufacture, advertise, promote, sell, and license sound recordings embodying their performances. In order to create sound recordings, the Record Company Plaintiffs make payments to, among others, their recording artists, other musicians, producers, technicians, and other staff personnel, and various musicians’ unions. The Record Company Plaintiffs and their recording artists are compensated for their creative efforts and monetary investments largely from revenues attributable to the sale of phonorecords to the public and from license fees for the reproduction, distribution, digital performance, or other exploitation of sound recordings. Absent such compensation, profits and motivation would be diverted away from recording artists and the record companies that record, manufacture, promote, and distribute their works. The pool of resources available for finding and promoting new artists would shrink, and the quality, integrity, and diversity of musical recordings would suffer. The ultimate result would be to diminish the public’s access to a wide variety of high-quality musical recordings.

45. The Record Company Plaintiffs are the copyright owners or owners of exclusive rights under United States copyright with respect to certain copyrighted sound recordings embodied in their phonorecords, including but not limited to those listed on Exhibit B (the "Copyrighted Sound Recordings"). Each Record Company Plaintiff has applied for and/or received Certificates of Copyright Registration from the Register of Copyrights for its Copyrighted Sound Recordings. Each Record Company Plaintiff has the exclusive rights to, inter alia, "reproduce the [Copyrighted Sound Recordings] in copies or phonorecords" and to "distribute copies [of the Copyrighted Sound Recordings] in phonorecords . . . to the public." On information and belief, Scour has made each of the sound recordings listed in Exhibit B, as well as other copyrighted sound recordings owned by plaintiffs, available for unlawful and unauthorized copying and distribution over the Internet.

46. Additionally, the Record Company Plaintiffs have entered into various agreements by which they obtained the sole, exclusive, and complete right to manufacture, distribute, and sell phonorecords embodying certain recorded musical performances of popular recording artists that were initially "fixed" (recorded) before February 15, 1972, and therefore are subject to protection under state statutory and common law, including but not limited to those identified in Exhibit C (the "Pre-1972 Sound Recordings"). On information and belief, Scour has made each of the sound recordings listed in Exhibit C, as well as other legally protected pre-1972 sound recordings owned by the Record Company Plaintiffs, available for unlawful and unauthorized copying and distribution over the Internet.

The Music Publisher Plaintiffs’ Business

48. Music publishers are deeply involved in the creative process, from discovering and fostering new songwriters, to promoting the use of songwriters’ music. The Music Publisher Plaintiffs have invested and continue to make substantial investments in composing, acquiring, advertising, promoting, selling, and/or licensing musical compositions. The Music Publisher Plaintiffs are compensated for their creative efforts and monetary investments largely from the license fees attributable to the use of their copyrighted compositions. Absent such compensation, the incentive to create, acquire, and disseminate new musical compositions would be destroyed. The ultimate result would be to diminish the public’s access to a wide variety of high-quality musical compositions.

49. Songwriters, such as plaintiffs Jerry Leiber and Mike Stoller, make their living, in part, by licensing their rights in their musical compositions. Thus, a record company that wants to make a sound recording of a copyrighted musical work, say "Hound Dog" by Leiber and Stoller, for distribution as a CD, cassette tape, phonograph record or Internet download must obtain a license from Leiber and Stoller or their music publishers to do so. A website that wishes to download that recording must be authorized to do so.

50. The Music Publisher Plaintiffs own or control the copyrights in certain musical compositions, including but not limited to those listed on Exhibit D (the "Copyrighted Musical Compositions"). Each Music Publisher Plaintiff has applied for and/or received Certificates of Copyright Registration from the Register of Copyrights for its Copyrighted Musical Compositions. Scour has made each of the musical compositions listed on Exhibit D available for unlawful and unauthorized copying and distribution over the Internet.

The Internet and Content Piracy

52. Copies of sound recordings (and the musical compositions performed thereon) and motion pictures are widely available on physical goods in digital formats, including CDs and DVDs. Those formats significantly improve the clarity and overall quality of the content and enable endless duplication of content without degradation from one copy to the next. The digital data files contained on such media can be copied to computers linked to the Internet. The files can then be downloaded (i.e., copied and saved to a computer hard drive) by Internet users for high-quality playback. Computers, portable devices designed for Internet-delivered content files, and even a growing number of home and car stereo components can play music and other content files delivered over the Internet. Recent technological developments have increased the speed and volume at which data can travel over the Internet. It is now a viable distribution channel not only for sound recordings, but even for the very large files that contain full-length motion pictures.

53. Worldwide, physical goods piracy costs the motion picture industry and the recording industry each billions of dollars annually. Now, in addition to fighting physical goods piracy, plaintiffs are also fighting wide-scale piracy of motion pictures and sound recordings (and the musical compositions performed thereon) on the Internet. The basic nature of this copyright infringement (i.e., unauthorized copying and distribution) is familiar. But the Internet makes it much easier and faster than ever before to make and distribute high-quality copies on a worldwide basis, and thus threatens copyright owners with more immediate and widespread harm than traditional physical goods piracy, which often is limited to particular geographical areas. Improvements in compression and transmission technology have led immediately and directly to the rapid growth of Internet-based infringement of motion pictures and sound recordings committed, facilitated, and encouraged by firms such as Scour. Increases in the speed and volume of data delivery, which are expected to accelerate over the next few years, threaten to lead to the exponential growth of piracy and infringement on the Internet.

54. Most Internet piracy of sound recordings is accomplished using a technology known as "MP3," which stands for Motion Picture Expert Group 1, Audio Layer 3. MP3 is an algorithm that compresses a digital music file by a ratio of approximately 12:1, thereby reducing the size of the file so that it can be more easily and quickly copied, transmitted, and downloaded over the Internet. Once downloaded, a music file can be played from a computer, or further copied onto home or car stereo equipment, or onto portable players designed for use with MP3 music files.

55. Most Internet piracy of motion pictures or other audiovisual files is accomplished using various technologies (some now standard, others new and emerging) embodied in hardware, software, and firmware used to compress the large amount of data contained in an audiovisual file so as to permit and facilitate its storage and transmission on the Internet, downloading from the Internet, and copying. Such technologies currently in use include DivX and ASF. Compression technology is improving rapidly, and with it the risk that Internet piracy of copyrighted works will spread.

Scour’s Activities

57. Scour has built its business and seeks to profit by knowingly, intentionally, and willfully participating in, facilitating, and encouraging the reproduction and distribution of infringing content files. Although Scour may make a small amount of authorized content available, the vast majority of the files that Scour makes available to its users are made, copied, and distributed without the authorization of the copyright owners. By making pirated works available to the public free of charge, Scour deprives content owners of the rewards for legitimate reproduction and distribution of their works that provide incentives for the creation of such works. Scour also preempts plaintiffs’ efforts to develop a legitimate commercial market for digitally downloaded motion pictures and sound recordings (and the musical compositions performed thereon) before that market has any chance to grow and succeed.

58. As part of its service, Scour’s website provides users with free copies of its proprietary SX "file-sharing" software. SX enables users to copy and distribute digitally stored computer files in a variety of formats, including MP3, DivX, and ASF. By using SX, users connect to Scour’s servers and can choose which content files stored on their computer hard drives they wish to make available for other Scour users to copy. Scour then inventories the files each user has so designated and combines and lists them in an extensive database and directory that is available on Scour’s servers to all Scour users who are concurrently logged on. In addition to telling users which content files are available for download, Scour creates actual connections to each file listed. Scour, moreover, ranks the available content files in order of the speed of the Internet connection of the Scour user offering each file (e.g., T3 line, T1 line, cable modem, 56k modem, etc.), and also provides "bit rate" information rating the quality of the encoding. Scour thereby encourages users to choose the highest-quality files at the greatest download speed possible. Thus, a user who wants a copy of a particular motion picture, sound recording, or musical composition can electronically contact the computer of the user offering the desired material merely by clicking on the Scour connection for the desired file that is available at the fastest download speed. The file then automatically downloads – i.e., is copied and saved – to the requesting user’s hard drive. All the while, Scour continually updates the user about the progress of the download until complete, including identifying what percentage of the motion picture, sound recording, or other content file has been transferred and estimating how much time remains until the transfer is complete. Scour facilitates and encourages the entire transaction.

59. Scour also gives its users a host of tools to enable unlawful copying and distribution. For example, visitors to Scour’s website can click on the question "How do I make my own MP3 files?" at which point the user is walked through the process (and receives the requisite software) to "rip an MP3 from one of your favorite CDs." Scour users are then encouraged to duplicate and transmit their files to others using SX.

60. In addition, through its partnership with a third party, Scour offers a service that provides secure storage space for files on a remote server. This service provides what Scour promotes as "free, secure, online storage space for all the multimedia files that you find on Scour." With Scour’s participation, Scour users can and do upload their pirated files onto this remote server for other Scour users to download at any time, regardless of whether the originating user is logged on to Scour’s servers. Thus, whenever a user logs on to Scour, he or she is certain to find thousands of pirated copyrighted works available for immediate download.

61. Scour participates in, facilitates, and encourages infringement not only by offering facilities designed for that purpose but also by making direct appeals to potential users. For example, the text on the "What is Scour?" page of Scour’s website begins with the exclamation "Mine! Mine! It’s all mine. Music. Movies. Pictures." It also announces that "We’re here to stock your shelves with the best that the net has to offer."

62. Because of Scour’s design, it is difficult or virtually impossible for copyright owners to trace and prevent individual users from reproducing and distributing copyrighted materials. Internet piracy of copyrighted materials has grown dramatically because of facilities and services such as Scour, which participate in, facilitate, and encourage large-scale trafficking in pirated copies and create the impression among individual users that unlawful activities will remain largely undetectable.

63. Scour can and, on information and belief, does monitor and control the activities of its users and the materials contained on the SX service and related facilities (including but not limited to the remote server). Not only is Scour aware of the illegal nature of its users’ activities, but it actively participates in, facilitates, and encourages those activities, and profits from them by, inter alia, drawing users to its website, thereby attracting advertising revenues and otherwise adding value to Scour’s business.

64. The content files available on and through Scour include numerous recently released blockbuster motion pictures, including many not yet available on home video, and hit sound recordings and musical compositions. Among the popular recordings available for copying through Scour are recordings by Britney Spears, Lauryn Hill, Garth Brooks, Bruce Springsteen, Madonna, Celine Dion, Sting, and many others. In addition, full-length movies such as American Beauty, Double Jeopardy, American Pie, The Matrix and many others are available for copying. A user can even copy the entire motion pictures The Perfect Storm, The Patriot, Gladiator and Mission: Impossible 2, which were only recently released in theaters in the United States and are not yet available in any home video format, let alone for distribution on the Internet.

65. The overwhelming majority of content files available from Scour are being distributed and copied with Scour’s knowing participation in violation of copyright laws.

COUNT I

67. A tremendous amount of copyright infringement takes place on and by virtue of Scour’s SX service every day. These infringements occur, inter alia, whenever a Scour user, without authorization of the copyright owner, uses Scour’s SX service to download a copyrighted content file from another user’s computer or the remote server, or makes copyrighted content files available for such unlawful downloading. Such acts constitute unauthorized distribution and result in unauthorized copies. Scour participates in, facilitates, and encourages these infringements. Because Scour makes available for unauthorized copying and distribution of copyrighted content files that are stored on individual users’ hard drives, rather than on public Internet sites, many of these files would not be available for illicit copying at all were it not for Scour.

68. Scour has engaged and continues to engage in the business of knowingly and systematically participating in, facilitating, materially contributing to, and encouraging the above-described unauthorized reproductions and/or distributions of copies of the Copyrighted Motion Pictures, Copyrighted Sound Recordings, and Copyrighted Musical Compositions, and thus the infringement of plaintiffs’ copyrights and exclusive rights in the Copyrighted Motion Pictures, Copyrighted Sound Recordings, and Copyrighted Musical Compositions.

69. Scour knowingly contributes to this massive copyright infringement because it derives substantial financial benefit from the infringement of plaintiffs’ copyrights. Scour solicits advertising and, plaintiffs are informed and believe, charges fees for advertising on Scour. On information and belief, the amount of those fees is directly related to the number of Scour users which, in turn, depends directly on Scour’s having a wide range and selection of pirated motion pictures, sound recordings, and musical compositions, which attracts users to the Scour SX service and which, in turn, adds to Scour’s inventory of pirated content. In addition, Scour is undertaking a purposeful strategy to make its company more attractive to existing and potential investors and advertisers by increasing the number of users and the volume of plaintiffs’ works available for unlawful copying and distribution, thereby increasing its advertising revenues.

70. At all relevant times, Scour has had the right and ability to supervise and/or control the infringing conduct of its users by, without limitation, preventing or terminating access to Scour’s computer servers and/or by refusing to index and create connections to infringing content files, but it has failed to exercise such supervision and/or control. As a direct and proximate result of such failure, Scour and its users have infringed plaintiffs’ copyrights in the Copyrighted Motion Pictures, Copyrighted Sound Recordings, and Copyrighted Musical Compositions.

71. Scour, through (a) its active participation in the unauthorized copying and/or electronic distribution of unauthorized copies of plaintiffs’ works, (b) its provision of the means and facilities for unauthorized copying and distribution through its SX service, (c) its encouragement of users to engage in these unauthorized acts and its material contribution to those acts, (d) its control over the means and facilities by which such unauthorized copies are made available, and (e) the substantial, direct financial benefits Scour derives from all of the aforesaid acts, all with full knowledge of their illegal consequences, is committing, and/or is contributorily and vicariously liable for, a vast number of copyright infringements, including infringements of the Copyrighted Motion Pictures, Copyrighted Sound Recordings, and Copyrighted Musical Compositions.

72. The infringement of each of plaintiffs’ rights in and to each of the Copyrighted Motion Pictures, Copyrighted Sound Recordings, and Copyrighted Musical Compositions constitutes a separate and distinct act of infringement.

73. The foregoing acts of infringement by Scour have been willful, intentional, and purposeful, in disregard of and indifference to plaintiffs’ rights.

74. As a direct and proximate result of Scour’s infringement of plaintiffs’ copyrights and exclusive rights under copyright, plaintiffs are entitled to damages as well as Scour’s profits pursuant to 17 U.S.C. § 504(b) for each infringement.

75. Alternatively, plaintiffs are entitled to the maximum statutory damages, pursuant to 17 U.S.C. § 504(c), in the amount of $150,000 with respect to each work infringed, or such other amounts as the Court may deem proper under 17 U.S.C. § 504(c).

76. Plaintiffs further are entitled to their attorneys’ fees and full costs pursuant to 17 U.S.C. § 505.

77. Scour’s conduct threatens to cause, and is causing, and unless enjoined and restrained by this Court will continue to cause, plaintiffs great and irreparable injury that cannot fully be compensated for or measured in money. Plaintiffs have no adequate remedy at law. Pursuant to 17 U.S.C. § 502, plaintiffs are entitled to preliminary and permanent injunctions prohibiting further infringements of their copyrights.

COUNT II

79. The foregoing acts and conduct of Scour constitute a misappropriation and invasion of the property rights of plaintiffs in and to the Pre-1972 Sound Recordings, and constitute misappropriation and unfair competition under state statutory and common law.

80. As a direct and proximate result of Scour’s conduct, the plaintiffs are further entitled to recover all proceeds and other compensation received or to be received by Scour arising from Scour’s infringements of the Pre-1972 Sound Recordings. The plaintiffs request the Court to order Scour to render an accounting to ascertain the amount of such profits and compensation.

81. As a direct and proximate result of Scour’s misappropriation and unfair competition, the plaintiffs have been damaged, and Scour has been unjustly enriched, in an amount to be proved at trial for which damages and/or restitution and disgorgement are appropriate. Such damages and/or restitution and disgorgement should include a declaration by this Court that Scour is a constructive trustee for the benefit of the plaintiffs, and an order that Scour convey to the plaintiffs all gross receipts and benefits received or to be received that are attributable to the infringement of the Pre-1972 Recordings.

82. Through its conduct, Scour is guilty of oppression, fraud, and/or malice and the plaintiffs are, in addition to their actual damages, by reason thereof, entitled to recover exemplary and punitive damages against Scour.

83. Scour’s conduct is causing and, unless enjoined and restrained by this Court will continue to cause, the plaintiffs great and irreparable injury that cannot fully be compensated or measured in money. The plaintiffs have no adequate remedy at law. The plaintiffs are entitled to preliminary and permanent injunctions prohibiting further acts of misappropriation and unfair competition.

WHEREFORE, plaintiffs pray for judgment against defendant as follows:

1. On Count I, for defendant’s profits and for damages in such amount as may be found, or alternatively, for maximum statutory damages of not less than $150,000 for each copyrighted work infringed, or for such other amount as may be proper pursuant to 17 U.S.C. § 504(c).

2. On Counts I and II, for a preliminary and a permanent injunction enjoining defendant and defendant’s agents, servants, employees, officers, attorneys, successors, licensees, partners, and assigns, and all persons acting in concert or participation with each or any of them, from: (i) directly or indirectly infringing in any manner any of plaintiffs’ respective copyrights or other exclusive rights (whether now in existence or hereafter created), including without limitation, copyrights in the Copyrighted Motion Pictures listed on Exhibit A; the Copyrighted Sound Recordings listed on Exhibit B; the exclusive rights in the Pre-1972 Sound Recordings listed on Exhibit C; and the Copyrighted Musical Compositions listed on Exhibit D, and (ii) from causing, contributing to, enabling, facilitating, or participating in the infringement of any of plaintiffs’ respective copyrights, including without limitation, the Copyrighted Motion Pictures listed on Exhibit A; the Copyrighted Sound Recordings listed on Exhibit B; the exclusive rights in the Pre-1972 Sound Recordings listed on Exhibit C; and the Copyrighted Musical Compositions listed on Exhibit D.

3. On Count II, for an accounting, the imposition of a constructive trust, restitution of defendant’s unlawful proceeds and benefits obtained by its misappropriation and unfair competition, and damages according to proof.

4. On Count II, for punitive and exemplary damages in such amount as may be awarded at trial.

5. For prejudgment interest according to law.

6. For plaintiffs’ attorneys’ fees, costs, and disbursements in this action.

7. For such other and further relief as the Court may deem just and proper.

Respectfully submitted,

Dated: July 20, 2000