IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

Plaintiffs MACROMEDIA, INC., a California corporation, ADOBE SYSTEMS, INC., a Delaware corporation, bring the following Complaint against Defendant JULIAN KISH:

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

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

3. Plaintiffs MACROMEDIA and ADOBE are each in the business of developing computer programs recorded on various media, including magnetic and optical disks (hereinafter referred to as "software"), for use on microcomputers of the type commonly referred to as "personal computers."

4. 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 and MACROMEDIA have authorized SIIA to assist them combat software piracy, in general, and with this litigation, in particular.

5. Defendant JULIAN KISH ("KISH") is an individual residing in the Northern District of Illinois.

6. 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.

7. 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).

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

9. Plaintiff MACROMEDIA restates and realleges Introductory Paragraphs 1 through 8 of this Complaint as Paragraph 9 of this Count I of the Complaint.

10. 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 Authorware, Version 5; Coursebuilder; Director, Version 8; Dreamweaver, Version 3; Fireworks, Version 3; Fireworks, Version 3; Flash, Version 4; Freehand, Version 9; and Generator 2 Server (hereinafter referred to collectively as the "MACROMEDIA Software Products"), and user instructions, reference manuals and other associated documents relative to such software products.

11. 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.

12. 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 A.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. On information and belief, on one or more times material to this proceeding, Defendant KISH 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, as follows:***

19. On July 10, 2000, SIIA received an email from Defendant KISH offering for sale various software products at discounted prices, including the MACROMEDIA Software Products.

20. On August 4, 2000, SIIA responded to Defendant KISH via email requesting pricing and the address where SIIA should send payment, and on the same date, August 4, 2000, SIIA received two emails from Defendant KISH offering to sell the MACROMEDIA Software Products and various other software products for $50 per CD Rom, but stating that he "really don’t want to go to jail for selling software."

21. On August 9, 2000, SIIA received an email from Defendant KISH stating that payment for the software should be mailed to Julian K., c/o the Computer Department, 332 S. Michigan Ave., Suite 900, Chicago, Illinois, which is the address of Defendant KISH’S employer.

22. SIIA ascertained Defendant KISH’s last name, and on August 10, 2000, SIIA sent correspondence addressed to Defendant KISH, c/o his employer at the aforesaid address listing the MACROMEDIA Software Products SIIA wished to purchase, stating an address where Defendant KISH should mail the MACROMEDIA Software Products, and enclosing a money order payable to Defendant KISH in the amount of $50.00. SIIA subsequently received an envelope via parcel post from Defendant KISH which contained unlicensed copies of the MACROMEDIA Software Products as well as unlicensed copies of other software titles.

23. Defendant KISH’s aforesaid conduct constituted the willful infringement of MACROMEDIA’S copyrights in the MACROMEDIA Software Products within the meaning of 17 U.S.C. § 504(c)(2).

24. 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 JULIAN KISH:

a) That Defendant KISH, his agents, employees, successors, assigns, and all other persons acting in concert with or affiliated with him, be 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 KISH 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 KISH 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.

25. Plaintiff Adobe restates and realleges Introductory Paragraphs 1 through 8 as Paragraph 25 of this Count II of the Complaint.

26. 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 4.5 and Type Manager 3.02a (hereinafter referred to collectively as the "ADOBE Software Products"), and user instructions, reference manuals and other associated documents relative to such software products.

27. 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").

28. 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 B.

29. 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.

30. 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.

31. 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.

32. 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 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.

33. 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.

34. On information and belief, on one or more times material to this proceeding, Defendant KISH 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, as follows:

35. On July 10, 2000, SIIA received an email from Defendant KISH offering for sale various software products at discounted prices, including the ADOBE Software Products.

36. On August 4, 2000, SIIA responded to Defendant KISH via email requesting pricing for various software products and the address where it should send payment, and on the same date, August 4, 2000, SIIA received two emails from Defendant KISH offering to sell the ADOBE Software Products and various other software products for $50 per CD Rom, but stating that he "really don’t want to go to jail for selling software."

37. On August 9, 2000, SIIA received an email from Defendant KISH stating that payment for the software should be mailed to Julian K., c/o the Computer Department, 332 S. Michigan Ave., Suite 900, Chicago, Illinois, which is the address of Defendant KISH’S employer.

38. SIIA ascertained Defendant KISH’s last name, and on August 10, 2000, SIIA sent correspondence to Defendant KISH c/o his employer listing certain software products which SIIA wished to purchase, stating an address where Defendant KISH should mail said software, and enclosing a money order payable to Defendant KISH in the amount of $50.00. SIIA subsequently received an envelope via parcel post from Defendant KISH containing unlicensed copies of the software products which SIIA had ordered as well as unlicensed copies of the ADOBE Software Products (which SIIA had not ordered).

39. Defendant KISH’s aforesaid conduct constituted the willful infringement of ADOBE’S copyrights in the ADOBE Software Products within the meaning of 17 U.S.C. § 504(c)(2).

40. 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 JULIAN KISH:

a) That Defendant KISH, his agents, employees, successors, assigns, and all other persons acting in concert with or affiliated with him, be 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 KISH be ordered to file, within 30 days of the injunction's 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 KISH 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.

William M. Stevens
Elayna T. Pham
McBride Baker & Coles
500 West Madison Street
Suite 4000
Chicago, Illinois 60661
312-715-5700

Verifications of Macromedia, Adobe, and Thomas Ayer omitted.