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`C.A. No.
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`COMPLAINT AND
`JURY DEMAND
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`
`UNITED STATES DISTRICT COURT FOR THE
`SOUTHERN DISTRICT OF NEW YORK
`-------------------------------------------------- X
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`RALF HARTMANN,
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`v.
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`GOOGLE LLC and YOUTUBE, LLC
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`Defendants.
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`-------------------------------------------------- X
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`Plaintiff,
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`
`
`Plaintiff, Ralf Hartmann, by and through his attorneys, Lebowitz
`Law Office LLC, as and for the complaint against defendants Google LLC
`(“Google”) and YouTube, LLC (“YouTube”), allege as follows:
`NATURE OF THE ACTION
`1.
`This is a civil action for damages against Defendants for
`violations of the United States Copyright Act of 1976, 17 U.S.C. §§
`101, et seq. This action arises out of Defendant’s infringement of
`copyrights in numerous Motion Pictures (as defined below) to which
`Plaintiff owns or controls copyright and/or exclusive distribution
`rights.
`2.
`Plaintiff brings this action against Defendants for direct,
`and contributory infringement of Plaintiff’s copyrights in the Motion
`Pictures, in violation of the Copyright Act of 1976, as amended, 17
`U.S.C. §§ 101 et seq. (the “Copyright Act”), the Berne Convention for
`the Protection of Literary and Artistic Works (the “Berne
`Convention”), as adopted by the Copyright Act, and in violation of the
`copyright laws of the foreign countries identified below (the “Foreign
`Countries”), where Defendant also violated Plaintiff’s copyrights by
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`committing infringing acts, including, without limitation, copying,
`distributing, renting, lending, selling, issuing, performing or
`broadcasting the Motion Pictures within these Foreign Countries
`(the “Foreign Copyright Laws”). Plaintiff seeks damages for
`Defendant’s infringements (and an injunction to prevent further
`unlawful use).
`
`
`PARTIES
`3.
`Plaintiff Ralf Hartmann (“Plaintiff” or “RH”) is a citizen
`and resident of Germany.
`4.
`Defendant YouTube, LLC is a Delaware limited liability
`company with its principal place of business in San Bruno, California.
`5.
`YouTube, LLC is a wholly owned and controlled subsidiary of
`Defendant Google LLC (“Google”), a Delaware limited liability company
`with its principal place of business in Mountain View, California, and
`a place of business in the State of New York and this District.
`6.
`Defendants operate a website called “YouTube,” located at
`www.youtube.com, one of the most prominent and popular websites on the
`Internet.
`7.
`Google exercises substantial and continuing control over
`the continuing acts of YouTube that form the subject matter of the
`claims against YouTube.
`8.
`Google also operates Google Play or the Google Play Store,
`which, upon information and belief, is a digital distribution service
`managed and developed by Google (“Google Play”), and serves as a
`digital media store, offering music, books, movies, and television
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`programs. Google’s digital distribution service for movies is called
`Google Play Movies & TV.
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`JURISDICTION AND VENUE
`9.
`The Court has exclusive subject matter jurisdiction under
`28 U.S.C. §§ 1331, 1332 and 1338 with respect to RH’s federal
`statutory claims.
`10. Upon information and belief, a substantial part of the
`facts of infringement complained of herein occurs or has occurred in
`this district, and Defendants are subject to personal jurisdiction in
`this district because they maintain a headquarters in this district
`located at 111 Eighth Avenue, New York, NY.
`11. Personal jurisdiction over Defendants is proper in this
`Court, among other reasons, on the grounds that Defendants, through
`their interactive web-based subscription service, caused the
`unlicensed streaming, rental, sale, broadcast and distribution of
`the Plaintiff’s Motion Pictures throughout the State of New York,
`including within this judicial district.
`12. This Court has personal jurisdiction over Defendants
`pursuant to CPLR § 302 (New York’s long-arm statute) due to their
`continuous and systematic business activities within New York as
`described below. Defendants have conducted and do conduct business
`within New York. Defendants, directly or through intermediaries
`(including distributors, retailers, and others), ship, distribute,
`offer for sale, sell, and advertise products in the United States,
`and specifically to New York. Defendants purposefully and
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`voluntarily streamed, rented, sold, broadcast and distributed
`Plaintiffs’ Motion Pictures in New York.
`13. Venue is proper in this district pursuant to 28 U.S.C. §§
`1391(b) and (c) and/or 1400(a).
`GENERAL ALLEGATIONS
`
`The Motion Pictures
`14. Pursuant to an agreement and short form assignment entered
`into between Capella Films, Inc. (“Capella Films”) and RH dated
`January 1, 2008, Capella Films assigned, transferred and sold to RH
`all of Capella Films’ interests (the “Interests”) in multiple motion
`pictures, including the following nine (9) motion pictures: (i)
`Austin Powers: International Man of Mystery; (ii) After the Rain;
`(iii) A Business Affair; (iv) Commander Hamilton; (v) Drop Dead
`Gorgeous; (vi) Fall; (vii) The Last Tattoo; (viii) Music From Another
`Room; and (ix) Pete’s Meteor (the “Motion Pictures”).
`15. The Interests acquired by RH included the copyrights in the
`following Motion Pictures registered with the United States Copyright
`Office: After The Rain; A Business Affair; Commander Hamilton; Fall;
`The Last Tattoo; Music From Another Room; and Pete’s Meteor. The
`copyright registration numbers for each of these Motion Pictures are
`set forth in the document annexed hereto as Exhibit A.
`16. Among the bundle of rights afforded to RH under United
`States copyright law – which rights were acquired from Capella Films –
`are the exclusive rights to “Reproduce the copyrighted work,”
`“distribute copies…of the copyrighted work to the public,” “perform
`the copyrighted work publicly,” and “display the copyright work
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`publicly.” 17 U.S.C. § 106. This includes the exclusive right “to
`transmit or otherwise communicate a performance or display” of the
`Motion Pictures “to the public by means of any device or process
`whether the members of the public capable of receiving the performance
`or display receive it in the same place or in separate places and at
`the same time or at different times.” Id. § 101.
`17. The Interests acquired by RH from Capella Films also
`included the copyright in and to the following two Motion Pictures
`throughout the “International Territory” (including any renewals and
`extensions of copyright): Austin Powers: International Man of
`Mystery; and Drop Dead Gorgeous. Here, “International Territory” was
`defined to mean the universe with the exclusion of the United States
`and Canada.
`18. Beginning in July 2017, Defendants, without Plaintiff’s
`authorization, have reproduced, distributed to the public for profit
`by sale or by rental, and publicly performed Plaintiff's copyright
`protected Motion Pictures After the Rain, Commander Hamilton and The
`Last Tattoo in the United States, including in this District, in
`violation of Plaintiff’s exclusive rights, including the display of
`the individual images of the Motion Pictures After the Rain, Commander
`Hamilton and The Last Tattoo.
`19. Specifically, Defendants reproduced, distributed,
`publically performed and displayed the Motion Pictures After the Rain,
`Commander Hamilton and The Last Tattoo in the United States through
`their YouTube and Play Store platforms – both accessible to public
`endusers via the internet and by downloadable app – and by means of
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`streaming (Video on Demand or “VOD”), sale (Electronic Sell Through or
`“EST”), rental (Download to Rent or “DTR”) or Advertising Supported
`Video on Demand (“ASVOD”).
`20. Defendants continued to reproduce, distribute, publically
`perform and display the Motion Pictures After the Rain, Commander
`Hamilton and The Last Tattoo in the United States, including in this
`District, via their YouTube and Play Store platforms thru December
`2017, and upon information and belief, thereafter into 2018.
`21. Collectively, the Motion Pictures After the Rain, Commander
`Hamilton and The Last Tattoo were reproduced, distributed, publically
`performed and/or displayed thousands of times in the United States,
`including within this District.
`22. Moreover, beginning in July 2017, Defendants, without
`Plaintiff’s authorization, have reproduced, distributed to the public
`for profit by sale or by rental, and publicly performed Plaintiff's
`copyright protected Motion Pictures After the Rain, Commander
`Hamilton, The Last Tattoo and Austin Powers: International Man of
`Mystery, in the Foreign Countries, including, but not limited to,
`Australia, Denmark, Great Britain, Ireland and Germany.
`23. Specifically, Defendants reproduced, distributed,
`publically performed and displayed the Motion Pictures After the Rain,
`Commander Hamilton, The Last Tattoo and Austin Powers: International
`Man of Mystery in the Foreign Countries through their YouTube and Play
`Store platforms – both accessible to public endusers in the Foreign
`Countries via the internet and by downloadable app – and by means of
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`streaming (VOD), sale (EST), rental (DTR) or Advertising Supported
`Video on Demand (ASVOD).
`24. Defendants continued to reproduce, distribute, publically
`perform and display the Motion Pictures After the Rain, Commander
`Hamilton, The Last Tattoo and Austin Powers: International Man of
`Mystery in the Foreign Countries, via their YouTube and Play Store
`platforms thru December 2017, and upon information and belief,
`thereafter into 2018.
`25. Collectively, the Motion Pictures After the Rain, Commander
`Hamilton, The Last Tattoo, and Austin Powers: International Man of
`Mystery were reproduced, distributed, publically performed and/or
`displayed thousands of times in the Foreign Countries.
`26. Defendants, without Plaintiff’s authorization, have upon
`information and belief, stored, hosted, and reproduced multiple,
`identical, digital copies of each of these four Motion Pictures -
`After the Rain, Commander Hamilton, The Last Tattoo, and Austin
`Powers: International Man of Mystery – onto and among multiple hard
`drives housed in Defendants’ digital storage facilities or data
`centers (“Data Centers”) which are located throughout the United
`States.
`27. Upon information and belief, each Data Center is one part
`of or one node within a larger, connected network of Data Centers
`which Defendants’ own in the United States and around the world.
`28. Upon information and belief, each of Defendants’ Data
`Center is connected to the internet, and to each other, which allowed
`Defendants to copy each of these four Motion Pictures - After the
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`Rain, Commander Hamilton, The Last Tattoo, and Austin Powers:
`International Man of Mystery – onto many hard drives or servers
`located within the multiple Data Centers which Defendants own in the
`United States.
`29. Upon information and belief, Defendants then reproduced,
`distributed, publically performed and displayed the Motion Pictures -
`After the Rain, Commander Hamilton and The Last Tattoo – from their
`Data Centers in the United States to end users in the United States,
`including this District, via their YouTube and Play Store platforms –
`by means of streaming (VOD), sale (EST), rental (DTR) and/or
`Advertising Supported Video on Demand (ASVOD).
`30. Upon information and belief, Defendants also then
`reproduced, distributed, publically performed and displayed the Motion
`Pictures - After the Rain, Commander Hamilton, The Last Tattoo and
`Austin Powers: International Man of Mystery – from their Data Centers
`in the United States to end users in the Foreign Countries, via their
`YouTube and Play Store platforms – by means of streaming (VOD), sale
`(EST), rental (DTR) and/or Advertising Supported Video on Demand
`(ASVOD).
`31. Defendants’ reproduction, distribution, public performance
`and/or display of the Motion Pictures - After the Rain, Commander
`Hamilton, The Last Tattoo – within the United States was without
`Plaintiff’s license or authorization and a violation of the Copyright
`Act.
`
`32. Defendants’ reproduction of the Motion Pictures - After the
`Rain, Commander Hamilton, The Last Tattoo and Austin Powers:
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`International Man of Mystery – within the United States and
`distribution, public performance and/or display of these Motion
`Pictures in the Foreign Countries, was without Plaintiff’s license or
`authorization and a violation of the Copyright Act.
`33. Upon information and belief, Defendants’ reproduction,
`distribution, public performance and/or display of the Motion Pictures
`- After the Rain, Commander Hamilton and The Last Tattoo – within the
`United States, occurred hundreds, if not thousands of times, since
`July 2017.
`34. Upon information and belief, Defendants’ reproduction of
`the Motion Pictures - After the Rain, Commander Hamilton, The Last
`Tattoo and Austin Powers: International Man of Mystery – within the
`United States, and distribution, public performance and/or display of
`these Motion Pictures in the Foreign Countries, occurred hundreds, if
`not thousands of times, since July 2017.
`35. Upon information and belief, Defendants’ infringing acts,
`including, without limitation, copying, distributing, renting,
`lending, selling, issuing, performing or broadcasting the Motion
`Pictures - After the Rain, Commander Hamilton, The Last Tattoo and
`Austin Powers: International Man of Mystery – within the Foreign
`Countries, occurred hundreds, if not thousands of times, since July
`2017.
`36. Because information regarding Defendants’ full use of RH’s
`Motion Pictures remains incomplete or in Defendants’ sole possession,
`the full and complete scope of Defendants’ infringing activities and
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`infringing uses of RH’s Motion Pictures has not yet been fully
`ascertained.
`37. Upon information and belief, a reasonable opportunity for
`further investigation and discovery will yield evidence that
`Defendants’ unauthorized, unlicensed, and/or infringing use and
`exploitation of the Motion Pictures is not limited to the uses
`described herein.
`38. Defendants’ pattern of unlicensed, unauthorized, and
`uncompensated use of the Motion Pictures injured plaintiff, including
`by depriving Plaintiff of his rightful compensation for the use of his
`Motion Pictures and infringing on Plaintiff’s exclusive rights to
`control the reproduction, use, distribution, and sale of his Motion
`Pictures.
`
`CLAIMS FOR RELIEF
`COUNT I
`Direct Infringement of Copyright in the United States
`
`25. RH incorporates by reference each and all of his prior
`allegations as if set forth herein.
`26. Defendants, without Plaintiff’s authorization, have
`reproduced, distributed to the public for profit by sale or by rental,
`and publicly performed Plaintiff's copyright protected Motion Pictures
`After the Rain, Commander Hamilton and The Last Tattoo in the United
`States, including in this District, in violation of Plaintiff’s
`exclusive rights, including the display of the individual images of
`the Motion Pictures After the Rain, Commander Hamilton and The Last
`Tattoo.
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`27. The foregoing acts of infringement by Defendants have been
`willful, intentional, and in disregard and with indifference to the
`rights of Plaintiff.
`28. As a direct and proximate result of Defendants’
`infringement of RH’s copyrights and exclusive rights under
`copyright in the Motion Pictures, RH is entitled to 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 may be proper under 17 U.S.C. § 504(c). Alternatively,
`at RH’s election, pursuant to 17 U.S.C. § 504(b), RH shall be
`entitled to its actual damages, including Defendants’ profits from
`infringement, as will be proven at trial.
`29. RH is entitled to his costs, including reasonable
`attorneys' fees, pursuant to 17 U.S.C. § 505.
`
`
`COUNT II
`Contributory Infringement of Copyrights in the United States
`30. RH incorporates by reference each and all of its prior
`allegations as if set forth herein.
`31. Defendants maintain the YouTube and Google Play
`platforms through which Defendants reproduced, distributed to the
`public for profit by sale or by rental, and publicly performed
`Plaintiff's copyright protected Motion Pictures - After the Rain,
`Commander Hamilton and The Last Tattoo After the Rain, Commander
`Hamilton and The Last Tattoo - in the United States, including in this
`District, in violation of Plaintiff’s exclusive rights, including the
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`display of the individual images of the Motion Pictures After the
`Rain, Commander Hamilton and The Last Tattoo.
`32. Defendants also developed, maintained and distributed a
`YouTube App and a Google Play App through which Defendants
`reproduced, distributed to the public for profit by sale or by rental,
`and publicly performed Plaintiff's copyright protected Motion Pictures
`- After the Rain, Commander Hamilton and The Last Tattoo After the
`Rain, Commander Hamilton and The Last Tattoo - in the United States,
`including in this District, in violation of Plaintiff’s exclusive
`rights, including the display of the individual images of the Motion
`Pictures After the Rain, Commander Hamilton and The Last Tattoo.
`33. Defendants, by facilitating, managing or directing
`unauthorized distributions of the Motion Pictures After the Rain,
`Commander Hamilton and The Last Tattoo, to which RH owns or holds the
`exclusive rights, materially contributed to the violation of the
`copyright laws by end users of YouTube and Google Play.
`34. The acts of contributory infringement by Defendants have
`been committed willfully and with the knowledge that their conduct
`aided and abetted the end-users of YouTube and Google Play to violate
`the exclusive rights of Plaintiff in the Motion Pictures After the
`Rain, Commander Hamilton and The Last Tattoo.
`35. Each unlawful reproduction, distribution, public
`performance and/or public display of the Motion Pictures - After the
`Rain, Commander Hamilton and The Last Tattoo – by end-users of YouTube
`and/or Google Play, constitutes a separate act of contributory
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`infringement on the part of Defendants for which Plaintiff is entitled
`to actual damages.
`36. As a direct and proximate result of Defendants’
`contributory infringement of RH’s copyrights and exclusive rights
`under copyright, RH is entitled to 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 may be
`proper under 17 U.S.C. § 504(c). Alternatively, at RH’s election,
`pursuant to 17 U.S.C. § 504(b), RH shall be entitled to his actual
`damages, including Defendant's profits from infringement, as will
`be proven at trial.
`37. RH is entitled to his costs, including reasonable
`attorneys' fees, pursuant to 17 U.S.C. § 505.
`COUNT III
`Contributory Infringement of Copyrights in Motion Pictures
`Reproduced on Defendants’ Data Centers in the United States and
`Distributed To Foreign Countries
`
`38. RH incorporates by reference each and all of its prior
`allegations as if set forth herein.
`39. Defendants, without Plaintiff’s authorization, reproduced
`digital copies of the Motion Pictures - After the Rain, Commander
`Hamilton, The Last Tattoo and Austin Powers: International Man of
`Mystery - on Defendants’ Data Centers in the United States, for the
`purpose of further distributing the Motion Pictures in the Foreign
`Countries, via their YouTube and Google Play platforms.
`40. From Defendants’ Data Centers in the United States, and
`through their YouTube and Google Play platforms, Defendants’
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`distributed copies of the Motion Pictures - After the Rain, Commander
`Hamilton, The Last Tattoo and Austin Powers: International Man of
`Mystery – to YouTube and Google Play end-users located in the Foreign
`Countries.
`41. Defendants’ wrongful acts of reproduction and distribution
`of the Motion Pictures - After the Rain, Commander Hamilton, The Last
`Tattoo and Austin Powers: International Man of Mystery – on their
`Data Centers in the United States, were predicate acts of domestic
`copyright infringement from which flowed extraterritorial acts of
`copyright infringement by end-users of YouTube and Google Play in the
`Foreign Countries.
`42. Each such unlawful reproduction and distribution of any of
`these Motion Pictures - After the Rain, Commander Hamilton, The Last
`Tattoo and Austin Powers: International Man of Mystery – from
`Defendants’ servers in the United States to end-users of YouTube and
`Google Play in the Foreign Countries, constitutes a separate act of
`contributory infringement by Defendants for which Plaintiff is
`entitled to actual damages.
`43. As a direct and proximate result of Defendants’
`contributory infringement of RH’s copyrights and exclusive rights
`under copyright, RH is entitled to 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 may be
`proper under 17 U.S.C. § 504(c). Alternatively, at RH’s election,
`pursuant to 17 U.S.C. § 504(b), RH shall be entitled to its actual
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`damages, including Defendants’ profits from infringement, as will
`be proven at trial.
`44. RH is entitled to its costs, including reasonable
`attorneys' fees, pursuant to 17 U.S.C. § 505.
`COUNT IV
`Vicarious Infringement of Copyrights in the United States
`45. RH incorporates by reference each and all of its prior
`allegations as if set forth herein.
`46. Google has a right and ability to supervise Youtube and its
`website, Youtube.com.
`47. Moreover, Google’s right and ability to supervise YouTube
`coalesced with an obvious and direct financial interest in the
`exploitation of the Motion Pictures by YouTube via Youtube.com and/or
`the YouTube App.
`48. By failing to supervise YouTube, Google is vicariously
`liable for the direct copyright infringement by YouTube in
`distributing for rental or sale, publicaly performing and/or
`displaying the Motion Pictures - After the Rain, Commander Hamilton,
`and The Last Tattoo – on the YouTube platform via Youtube.com and/or
`the YouTube App.
`
`COUNT V
` Copyright Infringement In Violation Of The
`Foreign Copyright Laws
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`49. RH incorporates by reference each and all of its prior
`allegations as if set forth herein.
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`50. Plaintiff’s Motion Pictures After the Rain, Commander
`Hamilton, The Last Tattoo and Austin Powers: International Man of
`Mystery are protectable under Foreign Copyright Laws of countries that
`are signatories to the Berne Convention.
`51. In violation of the Berne Convention, as adopted by the
`Copyright Act, and in violation of Foreign Copyright Laws of the
`Foreign Countries, Defendants committed infringing acts, including,
`without limitation, copying, distributing, renting, lending, selling,
`issuing, performing or broadcasting the Motion Pictures - After the
`Rain, Commander Hamilton, The Last Tattoo and Austin Powers:
`International Man of Mystery – in the Foreign Countries amd without
`Plaintiff’s authorization.
`52. Defendants’ acts of copying, distributing, renting,
`lending, selling, issuing, performing or broadcasting the Motion
`Pictures - After the Rain, Commander Hamilton, The Last Tattoo and
`Austin Powers: International Man of Mystery - in the Foreign
`Countries, via Defendants’ YouTube and Google Play platforms, without
`Plaintiff’s authorization, constitute copyright infringement under the
`Foreign Copyright Laws, entitling Plaintiff to money damages under the
`Foreign Copyright Laws, including, where applicable, statutory damages
`for each infringing act.
`WHEREFORE, Plaintiff prays that this Court enter judgment against
`Defendant, as follows:
`(a) That Defendants be held to have infringed upon
`Plaintiff’s copyrights in violation of the Copyright
`Act of 1976, 17 U.S.C. §§ 501 et seq.;
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`(b) that Defendants be held to have willfully infringed
`upon Plaintiff’s copyrights in violation of the
`Copyright Act of 1976, 17 U.S.C. §§ 501 et seq.;
`
`(c) that an accounting be had and judgment be rendered
`against Defendant for the profits, gains, and
`advantages derived from their wrongful actions, with
`such amounts to be increased and trebled as provided
`by law because of the willful and deliberate nature of
`Defendant’s actions;
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`(d) compensatory damages and full restitution of all funds
`acquired from Defendant’s unfair business practices,
`including disgorgement of profits;
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`(e) actual damages suffered by Plaintiff;
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`(f) and/or statutory damages upon Plaintiff’s election;
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`(g) punitive damages, to be awarded to Plaintiff;
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`(h) costs of suit herein;
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`(i) costs of investigation;
`
`(j)
`both pre- and post-judgment interest on any amounts
`awarded;
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`(k) payment of reasonable attorneys’ fees;
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`(l) declaratory relief; and
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`(m) such other and further relief as the Court may deem
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`just and proper.
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`DEMAND FOR A JURY TRIAL
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`As to all causes of action, where applicable, Plaintiff demands a
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`jury trial.
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`Dated: New York, New York
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`July 24, 2020
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`LEBOWITZ LAW OFFICE, LLC
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`
`
`
`Marc A. Lebowitzv
`Keith M. Getz
`747 Third Avenue
`23rd Floor
`
`New York, New York 10017
`
`(212)
`
`682—6818
`
`Attorneys for Ralf Hartmann
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`18
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