McBRIDE, BAKER & COLES
WILLIAM M. STEVENS (Application Pro Hac Vice Pending)
ELAYNA T. PHAM (Application Pro Hac Vice Pending)
500 W. Madison Street
40th Floor
Chicago, Illinois 60661
Telephone: (312) 715-5700
Facsimile: (312) 993-9350

TOWNSEND AND TOWNSEND AND CREW LLP
THEODORE T. HERHOLD (State Bar No. 122895)
MARC M. GORELNIK (State Bar No. 166833)
379 Lytton Avenue
Palo Alto, California 94301
Telephone: (650) 326-2400
Facsimile: (650) 326-2422

Attorneys for Plaintiffs
ADOBE SYSTEMS, INC., MACROMEDIA, INC., and
ALIAS/WAVEFRONT, a
division of SILICON GRAPHICS
LIMITED

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

Plaintiffs ADOBE SYSTEMS, INC., a Delaware corporation, MACROMEDIA, INC., a California corporation, and ALIAS/WAVEFRONT, a division of SILICON GRAPHICS LIMITED, an Ontario, Canada corporation, bring the following Complaint against Defendant MICHAEL CHU:

INTRODUCTORY PARAGRAPHS

The Parties

1. Plaintiff ADOBE SYSTEMS, INC. ("ADOBE") is a Delaware corporation with its principal place of business in San Jose, California.

2. Plaintiff MACROMEDIA, INC. ("MACROMEDIA") is a California corporation with its principal place of business in San Francisco, California.

3. Plaintiff ALIAS/WAVEFRONT, a division of SILICON GRAPHICS LIMITED ("ALIAS/WAVEFRONT") is an Ontario, Canada, corporation with its principal place of business in Toronto, Ontario, Canada.

4. Plaintiffs ADOBE, MACROMEDIA and ALIAS/WAVEFRONT are each in the business of developing computer programs recorded on various media (hereinafter referred to as "software") for use on personal and other types of computers.

5. Non-party SOFTWARE & INFORMATION INDUSTRY ASSOCIATION, formerly known as the Software Publishers Association ("SIIA") is a not-for-profit trade association located in Washington, D.C., which was organized pursuant to Section 501(c) (6) of the Internal Revenue Code, among other things, to represent its members in the software and information industry in combating infringement of their copyrights. Plaintiffs ADOBE, MACROMEDIA and SILICON GRAPHICS have authorized SIIA to assist them combat software piracy, in general, and with this litigation, in particular.

6. Defendant MICHAEL CHU ("CHU") is an individual residing in Los Altos Hills, California.

7. Software piracy is rampant in this country and throughout the world. A survey commissioned by SIIA determined that in 1999, alone, more than one in every three business software applications in use was pirated and that software publishers lost in excess of $12 billion annually as a result of the unauthorized use of their software.

Jurisdiction and Venue

8. This Court has subject matter jurisdiction over the claims set forth in this Complaint pursuant to the Copyright Act of 1976, 17 U.S.C. § 501, and 28 U.S.C. §§ 1331 and 1338(a).

9. Venue is proper in the United States District Court for the Central District of California pursuant to 28 U.S.C. §§ 1391(c) and 1400(a), because Defendant CHU is a resident of this district and a substantial part of the events giving rise to these claims occurred in this District.

COUNT I
ADOBE

10. Plaintiff ADOBE restates and realleges Introductory Paragraphs 1 through 9 and incorporates the same by this reference as if fully set forth herein.

11. ADOBE has made, and continues to make, a substantial investment of time, effort and expense in the design, development, testing, manufacturing, and marketing of various computer software products, including Acrobat, Version 4.1; After Affects, Version 4.1; Dimensions, Version 3.0; Framemaker, Version 5.5; Gallery Effects, Version 2.0; Go Live!, Version 4.0; Illustrator, Version 8.0; PageMaker, Version 6.5; PageMill, Version 3.0, Photoshop, Version 5.5; Plugins for Photoshop, Version 5.5; Premiere, Version 5.5; Streamline, Version 4.0; and Type Manager, Version 4.0 (hereinafter referred to collectively as the "ADOBE Software Products"), and user instructions, reference manuals and other associated documents relative to such software products.

12. The ADOBE Software Products, and related user instructions, reference manuals and other associated documents, contain wholly original materials constituting copyrightable subject matter under the Copyright Act of 1976, 17 U.S.C. §§ 101, et seq. (hereinafter "Copyright Law").

13. ADOBE complied at all relevant times and in all respects with the Copyright Law relative to the ADOBE Software Products and the user instructions, reference manuals and associated documents relative to such software products, and has registered same in full compliance with the Copyright Law. Copies of ADOBE’s Certificates of Registration for its copyrights in the ADOBE Software Products are attached hereto as Exhibit A.

14. Since the dates the copyrights for the ADOBE Software Products were registered, ADOBE has published and licensed or transferred licenses to the ADOBE Software Products, and the user instructions, reference manuals and other associated documents relative to such software products, in interstate commerce.

15. Since creating the ADOBE Software Products, ADOBE has remained the sole proprietor of all rights, title and interests in the copyrights associated with the ADOBE Software Products, and the user instructions, reference manuals and other associated documents, and of the attached Certificates of Registration relative thereto.

16. In an effort to discourage the unauthorized duplication, distribution and sale of their software, ADOBE markets and distributes authorized, licensed copies of the ADOBE Software Products, and the user instructions, reference manuals and other associated documents.

17. A personal computer user typically obtains an authorized copy of the ADOBE Software Products, and related user instructions, reference manuals and associated documents relative to such products, by licensing through an ADOBE authorized distributor a package containing one or more diskettes on which the software has been electronically or digitally recorded. The software can be installed by the user on a computer’s hard drive by running the "install" program that is included with the software.

18. In an effort to discourage the unauthorized duplication of the ADOBE Software Products, ADOBE requires authorized licensees of the ADOBE Software Products to enter the software program’s serial number during the installation process. The necessary serial number and installation information is provided with the materials that accompany authorized copies of these software products. However, it is possible for unlicensed copies of such software to be made from licensed copies of such software without ADOBE’s knowledge or authorization. In addition, unlicensed copies of ADOBE'S software can be obtained through unauthorized and illegitimate distribution channels.

19. On information and belief, on one or more times material to this proceeding, Defendant CHU has infringed ADOBE’s copyrights in the ADOBE Software Products by acquiring, making, selling and/or distributing unlicensed and unauthorized copies of same in violation of 17 U.S.C. § 501, including the following:

20. On June 18, 2000, SIIA received via email Defendant CHU’S price list for various software products which Defendant CHU was offering for sale at discounted prices, including the ADOBE Software Products.

21. SIIA sent an email to Defendant CHU on June 21, 2000, offering to purchase the ADOBE Software Products at the advertised price of $54.95, plus shipping and handling, and on the same date, SIIA received an email from Defendant CHU confirming receipt of said software purchase order and directing payment be made in advance to him at 11650 Dawson Dr., Los Altos Hills, California 94024-5115.

22. On June 22, 2000, SIIA mailed to Defendant CHU, at the address indicated, its purchase order for the ADOBE Software Products along with a money order payable to Defendant CHU and a sheet of paper stating the address to which Defendant CHU should send the software.

23. On July 8, 2000, SIIA received an envelope from Defendant CHU via parcel post bearing Defendant CHU’s aforesaid return address and containing, among other things, unlicensed copies of the ADOBE Software Products which SIIA had ordered, except for ADOBE’s Framemaker, Version 5.5.

24. On July 11, 2000, SIIA sent Defendant CHU an email complaining about his failure to deliver a copy of ADOBE’s Framemaker, Version 5.5.

25. On July 12, 2000, SIIA received an email from Defendant CHU confirming that he would send SIIA a copy of ADOBE’S Framemaker, Version 5.5, free of charge.

26. On July 18, 2000, SIIA received a second envelope via parcel post from Defendant CHU containing, among other things, an unlicensed copy of ADOBE’s Framemaker, Version 5.5.

27. Defendant CHU’s aforesaid conduct has damaged and will continue to damage ADOBE, and further constitutes the willful infringement of ADOBE’S copyrights in the ADOBE Software Products within the meaning of 17 U.S.C. § 504(c)(2). Unless restrained and enjoined by this Court, Defendant CHU’s conduct will cause and continue to cause irreparable harm to ADOBE.

28. By reason of the foregoing facts, ADOBE is entitled to injunctive and monetary relief pursuant to 17 U.S.C. §§ 502 through 505.

WHEREFORE, Plaintiff ADOBE SYSTEMS, INC., prays this Court to grant the following relief against Defendant MICHAEL CHU:

a) That Defendant CHU, his agents, employees, successors, assigns, and all other persons acting in concert with or affiliated with him, be preliminarily and permanently enjoined and restrained from copying, reproducing, manufacturing, duplicating, disseminating, distributing, or otherwise using any unauthorized copies of the ADOBE Software Products which are the subject of this Complaint, and the user instructions, reference manuals and other associated documents relative to such software products, and from otherwise infringing ADOBE’s copyrights in said software products;

b) That Defendant CHU be ordered to file, within 30 days of the issuance of the injunction and/or order of impoundment, a sworn report setting forth in detail the manner in which he has complied with the injunction and order of impoundment;

c) That Defendant CHU be ordered to conduct an accounting of all profits derived from making, using, marketing or selling unlicensed copies of the software which is the subject of this Complaint;

d) That ADOBE be awarded its actual damages or, in the alternative, its statutory damages for willful infringement in the amount of $150,000 per violation; and

e) That Plaintiff be awarded attorneys' fees, costs, and any further relief the court deems just and proper.

COUNT II
MACROMEDIA

29. Plaintiff MACROMEDIA restates and realleges Introductory Paragraphs 1 through 9 and incorporates the same by this reference as if fully set forth herein.

30. MACROMEDIA has made, and continues to make, a substantial investment of time, effort and expense in the design, development, testing, manufacturing, and marketing of various computer software products, including Director, Version 8.0; Shockwave Studio; Dreamweaver, Version 3.0; Fireworks, Version 3.0; Flash, Version 4.0; and Freehand, Version, 9.0 (hereinafter referred to collectively as the "MACROMEDIA Software Products"), and user instructions, reference manuals and other associated documents relative to such software products.

31. The MACROMEDIA Software Products, and related user instructions, reference manuals and other associated documents, contain wholly original materials constituting copyrightable subject matter under the Copyright Law.

32. MACROMEDIA complied at all relevant times and in all respects with the Copyright Law relative to the MACROMEDIA Software Products and the user instructions, reference manuals and associated documents relative to such software products, and has registered same in full compliance with the Copyright Law. Copies of MACROMEDIA’S Certificates of Registration for its copyrights in the MACROMEDIA Software Products are attached hereto as Exhibit B.

33. Since the dates the copyrights for the MACROMEDIA Software Products were registered, MACROMEDIA has published and licensed or transferred licenses to the MACROMEDIA Software Products, and the user instructions, reference manuals and other associated documents relative to such software products, in interstate commerce.

34. Since creating the MACROMEDIA Software Products, MACROMEDIA has remained the sole proprietor of all rights, title and interests in the copyrights associated with the MACROMEDIA Software Products, and the user instructions, reference manuals and other associated documents, and of the attached Certificates of Registration relative thereto.

35. In an effort to discourage the unauthorized duplication, distribution and sale of their software, MACROMEDIA markets and distributes authorized, licensed copies of the MACROMEDIA Software Products, and the user instructions, reference manuals and other associated documents.

36. A personal computer user typically obtains an authorized copy of the MACROMEDIA Software Products, and related user instructions, reference manuals and associated documents relative to such products, by licensing through a MACROMEDIA licensed distributor a package containing one or more diskettes on which the software has been electronically or digitally recorded. The software can be installed by the user on a computer’s hard drive by running the "install" program that is included with the software.

37. In an effort to discourage the unauthorized duplication of the MACROMEDIA Software Products, MACROMEDIA requires authorized licensees of the MACROMEDIA Software Products to enter the software program’s serial number during the installation process. The necessary serial number and installation information is provided with the materials that accompany authorized copies of these software products. However, it is possible for unlicensed copies of such software to be made from licensed copies of such software without MACROMEDIA’s knowledge or authorization. In addition, unlicensed copies of MACROMEDIA'S software can be obtained through unauthorized and illegitimate distribution channels.

38. On information and belief, on one or more times material to this proceeding, Defendant CHU has infringed MACROMEDIA’s copyrights in the MACROMEDIA Software Products by acquiring, making, selling and/or distributing unlicensed and unauthorized copies of same in violation of 17 U.S.C. § 501, including the following:

39. On June 18, 2000, SIIA received via email Defendant CHU’s price list for various software products, including the MACROMEDIA Software Products, which Defendant CHU was offering for sale at discounted prices.

40. SIIA, name, sent an email to Defendant CHU on June 21, 2000 offering to purchase the MACROMEDIA Software Products at the advertised price of $44.95, plus shipping and handling, and on the same date, SIIA received an email response from Defendant CHU confirming receipt of said software purchase order and directing payment be mailed to him at 11650 Dawson Dr., Los Altos Hills, California 94024-5115.

41. On June 22, 2000, SIIA mailed to Defendant CHU at the address indicated a purchase order for the MACROMEDIA Software Products along with a money order payable to Defendant CHU and a sheet of paper with the address to which Defendant CHU should mail the software.

42. On July 8, 2000, SIIA received from Defendant CHU via parcel post an envelope bearing Defendant CHU’s aforesaid return address and containing, among other things, unlicensed copies of the MACROMEDIA Software Products which SIIA had ordered from Defendant CHU on June 22, 2000.

43. Defendant CHU’s aforesaid conduct has damaged and will continue to damage MACROMEDIA, and further constitutes the willful infringement of MACROMEDIA’S copyrights in the MACROMEDIA Software Products within the meaning of 17 U.S.C. § 504(c)(2). Unless restrained and enjoined by this Court, Defendant CHU’s conduct will cause and continue to cause irreparable harm to MACROMEDIA.

44. By reason of the foregoing facts, MACROMEDIA is entitled to injunctive and monetary relief pursuant to 17 U.S.C. §§ 502 through 505.

WHEREFORE, Plaintiff MACROMEDIA, INC., prays this Court to grant the following relief against Defendant MICHAEL CHU:

a) That Defendant CHU, his agents, employees, successors, assigns, and all other persons acting in concert with or affiliated with him, be preliminarily and permanently enjoined and restrained from copying, reproducing, manufacturing, duplicating, disseminating, distributing, or otherwise using any unauthorized copies of the MACROMEDIA Software Products which are the subject of this Complaint, and the user instructions, reference manuals and other associated documents relative to such software products, and from otherwise infringing MACROMEDIA’s copyrights in said software products;

b) That Defendant CHU be ordered to file, within 30 days of the issuance of the injunction and/or order of impoundment, a sworn report setting forth in detail the manner in which he has complied with the injunction and order of impoundment;

c) That Defendant CHU be ordered to conduct an accounting of all profits derived from making, using, marketing or selling unlicensed copies of the software which is the subject of this Complaint;

d) That MACROMEDIA be awarded its actual damages or, in the alternative, its statutory damages for willful infringement in the amount of $150,000 per violation; and

e) That Plaintiff be awarded attorneys' fees, costs, and any further relief the court deems just and proper.

COUNT III
ALIAS/WAVEFRONT

45. Plaintiff ALIAS/WAVEFRONT restates and realleges the Introductory Paragraphs set forth in Paragraphs 3, 4 (with respect to ALIAS/WAVEFRONT, only), 5 and 7 through 9 of this Complaint as Paragraph 45 of this Count III of the Complaint.

46. ALIAS/WAVEFRONT has made a substantial investment of time, effort and expense in the design, development, testing, manufacturing and marketing of various computer software products, including Maya Unlimited, Version 2.5 (the "ALIAS/WAVEFRONT Software Product").

47. The ALIAS/WAVEFRONT Software Product and related user instructions, reference manuals and other associated documents largely contain original materials constituting copyrightable subject matter.

48. ALIAS/WAVEFRONT'S application for copyright registration for Maya Unlimited, Version 2.5 is pending with the U.S. Copyright Office and is attached hereto as Exhibit C.

49. ALIAS/WAVEFRONT has published, marketed, distributed and sold in interstate commerce the ALIAS/WAVEFRONT Software Product, and the user instructions, reference manuals and other associated documents relative to such software product, or same have been marketed, distributed and resold in interstate commerce by resellers pursuant to authority granted by ALIAS/WAVEFRONT.

50. Since creating the ALIAS/WAVEFRONT Software Product, ALIAS/WAVEFRONT has remained the proprietor of the rights, title and interests in the copyrights associated with the ALIAS/WAVEFRONT Software Product, and the user instructions, reference manuals and other associated documents.

51. In an effort to discourage the unauthorized duplication, distribution and sale of the ALIAS/WAVEFRONT Software Product, ALIAS/WAVEFRONT markets, distributes and sells the ALIAS/WAVEFRONT Software Product and the user instructions, reference manuals and other associated documents directly to its licensees, or through ALIAS/WAVEFRONT authorized and certified resellers. Defendant CHU is not an ALIAS/WAVEFRONT authorized or certified reseller or otherwise authorized or certified by ALIAS/WAVEFRONT to market, sell or distribute the ALIAS/WAVEFRONT Software Product.

52. The ALIAS/WAVEFRONT Software Product and the related user instructions, reference manuals and associated documents relative to such products are available for use only through licenses issued directly to the user by ALIAS/WAVEFRONT. The software is contained on one or more CD Roms on which the software has been digitally recorded and is encrypted by ALIAS/WAVEFRONT to run on the specific computer designated by ALIAS/WAVEFRONT'S licensee.

53. In an effort to discourage the unauthorized duplication of the ALIAS/WAVEFRONT Software Product, ALIAS/WAVEFRONT requires authorized licensees of the ALIAS/WAVEFRONT Software Product to obtain an encryption code directly from ALIAS/WAVEFRONT which is a prerequisite to the operation of the software on a computer. Nonetheless, it is possible for unlicensed copies of such software to be made from licensed copies of such software without ALIAS/WAVEFRONT’S knowledge or authorization. In addition, unlicensed copies of the ALIAS/WAVEFRONT Software Product can be obtained through unauthorized and illegitimate distribution channels.

54. On information and belief, on one or more times material to this proceeding, Defendant CHU has infringed ALIAS/WAVEFRONT’S copyright in the ALIAS/WAVEFRONT Software Product by acquiring, making, selling and/or distributing unlicensed copies of the ALIAS/WAVEFRONT Software Product in violation of 17 U.S.C. § 501, as follows:

55. On June 21, 2000, SIIA received via email Defendant CHU’s price list for various software products. As alleged, supra at Paragraph 19, SIIA sent Defendant CHU an email complaining that he had failed to send a copy of a certain software product in accordance with a previous purchase order SIIA had sent CHU for that software and requesting that he rectify this oversight by furnishing, among other things, a copy of the ALIAS/WAVEFRONT Software Product at no charge.

56. On July 12, 2000, SIIA received an email from Defendant CHU confirming that he would send a free copy of the ALIAS/WAVEFRONT Software Product.

57. On July 18, 2000, SIIA received an envelope via parcel post from Defendant CHU bearing Defendant CHU’s return address and containing, among other things, a free copy of the ALIAS/WAVEFRONT Software Product.

58. On July 26, 2000, SIIA sent another email to Defendant CHU offering to purchase two additional copies of the ALIAS/WAVEFRONT Software Product at $20 per copy, and on the same date, Defendant CHU sent SIIA an email confirming said order.

59. The next day, July 27, 2000, SIIA sent Defendant CHU a money order in the amount of $40.00 in payment for the two additional copies of the ALIAS/WAVEFRONT Software Product, addressed to Defendant CHU at his aforesaid address.

60. On August 5, 2000, SIIA received an envelope via parcel post bearing Defendant CHU’s return address and containing two additional unlicensed copies of the ALIAS/WAVEFRONT Software Product.

61. Defendant Chu's aforesaid conduct constituted the willful infringement of ALIAS/WAVEFRONT'S copyright in the ALIAS/WAVEFRONT Software Product, and unless restrained and enjoined by this Court, Defendant CHU’s conduct will cause and continue to cause irreparable harm to ALIAS/WAVEFRONT.

62. By reason of the foregoing facts, ALIAS/WAVEFRONT is entitled to injunctive and monetary relief.

WHEREFORE, Plaintiff ALIAS/WAVEFRONT, a division of SILICON GRAPHICS LIMITED, prays this Court to grant the following relief against Defendant Michael CHU:

a) That Defendant CHU, his agents, employees, successors, assigns, and all other persons acting in concert with or affiliated with him, be preliminarily and permanently enjoined and restrained from copying, reproducing, manufacturing, duplicating, disseminating, distributing, or otherwise using any unauthorized copies of the ALIAS/WAVEFRONT Software Product which are the subject of this Complaint, and the user instructions, reference manuals and other associated documents relative to such software products, and from otherwise infringing ALIAS/WAVEFRONT'S copyright in said software product;

b) That Defendant CHU be ordered to file, within 30 days of the issuance of the injunction or order of impoundment, a sworn report setting forth in detail the manner in which he has complied with the injunction and order of impoundment;

c) That Defendant CHU be ordered to conduct an accounting of all profits derived from making, using, marketing or selling unlicensed copies of the software which is the subject of this Complaint;

d) That ALIAS/WAVEFRONT be awarded compensatory and punitive damages; and

e) That Plaintiff be awarded attorneys' fees, costs, and any further relief the court deems just and proper.

DATED: January 25, 2001

Demand for Jury Trial and Verifications of Adobe, Macromedia, Alias/Wavefront, and Thomas Ayers omitted.