Case 1:21-cv-04813-PAE Document 1 Filed 05/29/21 Page 1 of 11
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`Index No. ____________
`
`COMPLAINT AND JURY DEMAND
`
`Laszlo PUSZTAI, an individual, and DIRE
`STUDIO SZOLGÁLTATÓ
`KORLÁTOLT FELELŐSSÉGŰ
`TÁRSASÁG, a Hungarian limited
`liability company (d/b/a “DIRE Studio
`Kft.”),
`
`Plaintiffs,
`
`v.
`
`APPLE, INC., a California corporation,
`
`Defendant.
`
`Plaintiffs Laszlo Pusztai (“Pusztai”) and DIRE Studio Szolgáltató Korlátolt Felelősségű
`
`Társaság (“DIRE Studio”), by and through undersigned counsel, bring this Complaint and Jury
`
`Demand against defendant Apple, Inc. (“Apple”), for damages and injunctive relief, and in
`
`support thereof states as follows:
`
`THE PARTIES
`
`1.
`
`Pusztai is a photographer and programmer. He is a citizen and resident of Hungary. He
`
`created an application called “ShutterCount,” (the “Pusztai App”) designed to interface with
`
`users’ digital cameras and display to users the total “shutter counts” for each camera. This is
`
`especially useful in the active market for pre-owned digital cameras. Pusztai remains the
`
`copyright holder of the Pusztai App.
`
`2.
`
`DIRE Studio is a Hungarian limited liability company, maintaining its offices in
`
`Budapest, Hungary. It is the exclusive licensee of the Pusztai App.
`
`3.
`
`Defendant Apple is a California corporation maintaining its principal office in Cupertino,
`
`California. It is authorized to do business in New York as a foreign corporation. Its registered
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`Index No. ____________
`
`COMPLAINT AND JURY DEMAND
`
`Laszlo PUSZTAI, an individual, and DIRE
`STUDIO SZOLGÁLTATÓ
`KORLÁTOLT FELELŐSSÉGŰ
`TÁRSASÁG, a Hungarian limited
`liability company (d/b/a “DIRE Studio
`Kft.”),
`
`Plaintiffs,
`
`v.
`
`APPLE, INC., a California corporation,
`
`Defendant.
`
`Plaintiffs Laszlo Pusztai (“Pusztai”) and DIRE Studio Szolgáltató Korlátolt Felelősségű
`
`Társaság (“DIRE Studio”), by and through undersigned counsel, bring this Complaint and Jury
`
`Demand against defendant Apple, Inc. (“Apple”), for damages and injunctive relief, and in
`
`support thereof states as follows:
`
`THE PARTIES
`
`1.
`
`Pusztai is a photographer and programmer. He is a citizen and resident of Hungary. He
`
`created an application called “ShutterCount,” (the “Pusztai App”) designed to interface with
`
`users’ digital cameras and display to users the total “shutter counts” for each camera. This is
`
`especially useful in the active market for pre-owned digital cameras. Pusztai remains the
`
`copyright holder of the Pusztai App.
`
`2.
`
`DIRE Studio is a Hungarian limited liability company, maintaining its offices in
`
`Budapest, Hungary. It is the exclusive licensee of the Pusztai App.
`
`3.
`
`Defendant Apple is a California corporation maintaining its principal office in Cupertino,
`
`California. It is authorized to do business in New York as a foreign corporation. Its registered
`
`
`
`Case 1:21-cv-04813-PAE Document 1 Filed 05/29/21 Page 2 of 11
`
`agent for service of process is located in this District. Apple’s flagship retail store is located in
`
`this District. On information and belief, Apple maintains corporate offices in more than one
`
`location in this District.
`
`JURISDICTION AND VENUE
`
`4.
`
`This is an action arising under the Copyright Act, 17 U.S.C. §§ 501, et seq. and §§ 1201,
`
`et seq.
`
`5.
`
`This Court has subject matter jurisdiction over these claims pursuant to 28 U.S.C. §§
`
`1331, 1332 and 1338(a).
`
`6.
`
`Apple is subject to personal jurisdiction in New York, and venue in this district is proper
`
`under 28 U.S.C. § 1400(a), because Apple maintains both major retail outlets and substantial
`
`corporate offices in this District, has appointed an agent in this District to receive service of
`
`process, and therefore Apple or its agent resides or may be found in this District.
`
`PLAINTIFF’S COPYRIGHTS AND DEFENDANT’S INFRINGEMENT
`
`7.
`
`Plaintiffs bring this action for violations of exclusive rights under the Copyright Act, 17
`
`U.S.C. § 106, to reproduce and distribute Plaintiffs’ original copyrighted works of authorship,
`
`and also for violations of the copyright laws of several foreign jurisdictions.
`
`8.
`
`In 2013, DIRE Studio authorized Apple to sell copies of the Pusztai App through Apple’s
`
`online store, known as the “App Store.” DIRE Studio has periodically released via the App
`
`Store updated versions of the Pusztai App. In 2017, DIRE Studio released – successively –
`
`versions 3.0, 3.1 and 3.2 of the Pusztai App.
`
`9.
`
`Each of versions 3.0, 3.1, and 3.2 of the Pusztai App are registered with the U.S.
`
`Copyright Office as, respectively, TX 8-963-783, TX 8-963-778 and TX 8-963-782. True and
`
`correct copies of the registration certificates are attached hereto as Exhibit 1.
`
`
`
`Case 1:21-cv-04813-PAE Document 1 Filed 05/29/21 Page 3 of 11
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`10.
`
`The Pusztai App consists of a body of software code which allows the device on which it
`
`resides – either an Apple “Macintosh” brand computer running Apple’s “MacOS” operating
`
`system or an Apple mobile device running Apple’s “iOS” operating system – to communicate
`
`with the “firmware” built into certain digital cameras. It does this by formulating particular
`
`instructions – the “communication code” – specific to each camera, which the Pusztai App sends
`
`to a camera’s firmware, instructing the camera’s firmware to report to the Pusztai App certain
`
`data from which the Pusztai App is able to calculate the number of times the camera shutter has
`
`been actuated.
`
`11.
`
`Certain digital cameras operate in two modes, called “viewfinder” (employed with the
`
`camera close to the photographer’s eye to judge the frame of the image) and “live view” (which
`
`shows the composition on a larger LCD screen, so the image can be framed while the camera is
`
`held away from the photographer’s eye). The data reported by camera firmware allows the
`
`Pusztai app to calculate separately the number of “viewfinder” actuations and the number of
`
`“live view” actuations.
`
`12.
`
`Once the Pusztai App receives the raw “shutter count” data from the camera’s firmware,
`
`it calculates the shutter actuation counts in each mode – “viewfinder” and “live view” modes –
`
`and presents that information graphically to the user. When operated under certain conditions,
`
`the Pusztai App contains an inadvertent error which misinterprets shutter actuation data when
`
`that actuation occurs in “live view” mode: the Pusztai App mistakenly double-counts each
`
`incremental “live view” actuation and simultaneously reduces by one the count of “viewfinder”
`
`actuations.”
`
`13.
`
`By way of illustration, consider a camera which reported to the Pusztai App data
`
`indicating that there had been 18632 viewfinder actuations and 4713 live view actuations.
`
`
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`Case 1:21-cv-04813-PAE Document 1 Filed 05/29/21 Page 4 of 11
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`Thereafter, that camera is subsequently placed in “live view” mode and the photographer takes a
`
`single test shot. If the Pusztai App were to query that camera’s firmware a second time, the
`
`Pusztai App display would show 18631 “viewfinder” actuations (one less than previously) and
`
`4715 “live view” actuations (two more than previously).
`
`14.
`
`On information and belief, in or about April 2014, a Russian citizen named Konstantin
`
`Pavlikhin (“Pavlikhin”) authored an application called “EOS Inspector,” designed to run on
`
`Macintosh computers running Apple’s MacOS. “EOS Inspector – similarly to the Pusztai App –
`
`allowed users to obtain from certain models of the Canon “EOS” brand of digital camera “shutter
`
`counts” documenting how heavily each camera has been used.
`
`15.
`
`On information and belief, in or about 2017, Pavlikhin purchased one or more copies of
`
`versions 3.0, 3.1 and/or 3.2 of the Pusztai App from the App Store. On information and belief,
`
`Pavlikhin copied substantial sections of the source code embodied in the Pusztai App, and
`
`created an unauthorized derivative work – a new version of the “EOS Inspector” application,
`
`later renamed “ShutterCheck” (the “Infringing Pavlikhin App”) – which Pavlikhin licensed for
`
`sale on the App Store in or about June 2018.
`
`16.
`
`Testing the Infringing Pavlikhin App shows that it incorporates the same calculation error
`
`with respect to miscounting actuations occurring in “live view” mode. This and other findings
`
`indicate that Pavlikhin – without license from the Plaintiffs – reproduced Pusztai’s original
`
`software code as embodied in the Pusztai App, made unauthorized derivative works therefrom,
`
`and/or distributed those unauthorized derivative works – the several sequential versions of the
`
`Infringing Pavlikhin App – in violation of 17 U.S.C. § 106, and the laws of several foreign
`
`jurisdictions.
`
`
`
`Case 1:21-cv-04813-PAE Document 1 Filed 05/29/21 Page 5 of 11
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`17.
`
`In or about June 2018, Apple began distributing copies of the Infringing Pavlikhin App to
`
`the public through its App Store. On information and belief, Apple retained thirty percent (30%)
`
`of revenue derived from sales of the Infringing Pavlikhin App.
`
`18.
`
`On or about June 11, 2018, Plaintiffs gave written notice to Apple, including all the
`
`information necessary under 17 U.S.C. 512(c)(3), that the Infringing Pavlikhin App infringed the
`
`Pusztai App.
`
`19.
`
`Thereafter, until approximately December of 2020 – almost thirty (30) months after
`
`Plaintiffs notified Apple that the Infringing Pavlikhin App infringed the Pusztai App – Apple
`
`declined to remove the Infringing Pavlikhin App from the App Store, resulting in substantial
`
`damage to Plaintiffs. Instead, Apple continued to distribute, and to collude in the distribution of,
`
`the Infringing Pavlikhin App, to its profit and to Plaintiff’s injury.
`
`20.
`
`Indeed, on information and belief, Apple continues to permit the download of newer
`
`versions of the Infringing Pavlikhin App from the App Store to customers who had purchased
`
`prior versions of the Infringing Pavlikhin App. Further, though Apple has disabled new
`
`purchases of the Infringing Pavlikhin App via the App Store, on information and belief, Apple
`
`continues to assist Pavlikhin to distribute the Infringing Pavlikhin App through other channels by
`
`certifying that the Infringing Pavlikhin App does not contain malware, and by issuing a “code
`
`signing certificate” for the Infringing Pavlikhin App, permitting it to run on Apple’s MacOS
`
`operating system.
`
`COUNT 1
`DIRECT COPYRIGHT INFRINGEMENT: 17 U.S.C. §§ 501 et seq.
`
`21.
`
`22.
`
`Plaintiffs incorporate the allegations of paragraphs 1-20 above as if fully set forth herein.
`
`Plaintiff Pusztai holds a valid copyright in the Pusztai App, all relevant versions of which
`
`are registered with the U.S. Copyright Office.
`
`
`
`Case 1:21-cv-04813-PAE Document 1 Filed 05/29/21 Page 6 of 11
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`23.
`
`Pavlikhin, without authorization, copied substantial portions of the source code of the
`
`Pusztai App, and incorporated them into an unauthorized derivative work, the Infringing
`
`Pavlikhin App.
`
`24.
`
`From approximately June 2018, Apple distributed the Infringing Pavlikhin App to the
`
`public in the United States and elsewhere.
`
`25.
`
`Despite notice of the infringing nature of the Infringing Pavlikhin App, Apple
`
`disregarded that notice and continued for more than two years to distribute the Infringing
`
`Pavlikhin App to the public. On information and belief, it continues to do so to customers who
`
`bought prior versions of the Infringing Pavlikhin App.
`
`26.
`
`By reason of Apple’s distribution of the Infringing Pavlikhin App, Apple is directly liable
`
`to Plaintiffs for damages resulting from Apple’s distribution of the Infringing Pavlikhin App.
`
`COUNT 2
`VICARIOUS AND/OR CONTRIBUTORY
`COPYRIGHT INFRINGEMENT: 17 U.S.C. §§ 501 et seq.
`
`27.
`
`28.
`
`Plaintiffs incorporate the allegations of paragraphs 1-26 above as if fully set forth herein.
`
`Plaintiff Pusztai holds a valid copyright in the Pusztai App, all relevant versions of which
`
`are registered with the U.S. Copyright Office.
`
`29.
`
`Pavlikhin, without authorization, copied substantial portions of the source code of the
`
`Pusztai App, and incorporated them into an unauthorized derivative work, the Infringing
`
`Pavlikhin App.
`
`30.
`
`From approximately June 2018, Pavlikhin – using the Apple App Store – distributed the
`
`Infringing Pavlikhin App to the public in the United States and elsewhere.
`
`31.
`
`Apple had the right and ability to supervise Pavlikhin’s use of the App Store to distribute
`
`the Infringing Pavlikhin App, and profited from that distribution, despite timely notice that the
`
`Infringing Pavlikhin App infringed the Pusztai App.
`
`
`
`Case 1:21-cv-04813-PAE Document 1 Filed 05/29/21 Page 7 of 11
`
`32.
`
`Further, Apple continues to assist Pavlikhin in distributing the Infringing Pavlikhin App
`
`via other channels by certifying it free of malware and issuing a code signing certificate
`
`permitting the Infringing Pavlikhin App to run on Apple’s MacOS operating system.
`
`33.
`
`By reason of Apple’s control of and profit from Pavlikhin’s use of the App Store to
`
`distribute the Infringing Pavlikhin App, and its continuing assistance to Pavlikhin in certifying
`
`the Infringing Pavlikhin App, Apple is vicariously and/or contributorily liable to Plaintiffs for
`
`damages resulting from Pavlikhin’s distribution of the Infringing Pavlikhin App.
`
`COUNT 3
`COPYRIGHT INFRINGEMENT: GERMANY
`
`34.
`
`35.
`
`36.
`
`Plaintiffs incorporate the allegations of paragraphs 1-33 above as if fully set forth herein.
`
`Plaintiff Pusztai holds a valid copyright in the Pusztai App.
`
`Pavlikhin, without authorization, copied substantial portions of the source code of the
`
`Pusztai App, and incorporated them into an unauthorized derivative work, the Infringing
`
`Pavlikhin App.
`
`37.
`
`From approximately June 2018, Apple distributed and made the Infringing Pavlikhin App
`
`available to the public in the Federal Republic of Germany.
`
`38.
`
`By reason of Apple’s distribution of the Infringing Pavlikhin App, Apple is directly liable
`
`under German law to Plaintiffs for damages resulting from Apple’s distribution and making
`
`available to the public of the Infringing Pavlikhin App, or alternatively, indirectly liable to
`
`Plaintiffs for damages from Pavlikhin’s distribution and making available to the public of the
`
`Infringing Pavlikhin App. Further, Apple is liable to Plaintiffs under German law for its unjust
`
`enrichment resulting from its actions described herein. Finally, the Court should award to
`
`Plaintiffs their attorneys’ fees and costs, pursuant to German law.
`
`
`
`Case 1:21-cv-04813-PAE Document 1 Filed 05/29/21 Page 8 of 11
`
`COUNT 4
`COPYRIGHT INFRINGEMENT: UNITED KINGDOM
`
`39.
`
`40.
`
`41.
`
`Plaintiffs incorporate the allegations of paragraphs 1-38 above as if fully set forth herein.
`
`Plaintiff Pusztai holds a valid copyright in the Pusztai App.
`
`Pavlikhin, without authorization, copied substantial portions of the source code of the
`
`Pusztai App, and incorporated them into an unauthorized derivative work, the Infringing
`
`Pavlikhin App.
`
`42.
`
`From approximately June 2018, Apple distributed and made the Infringing Pavlikhin App
`
`available to the public in the United Kingdom.
`
`43.
`
`By reason of Apple’s distribution of the Infringing Pavlikhin App, Apple is liable under
`
`British law to Plaintiffs for damages resulting from Apple’s distribution, and communication to
`
`the public, of the Infringing Pavlikhin App. Additionally, the Court should award to Plaintiffs
`
`their attorneys’ fees and costs pursuant to British law.
`
`COUNT 5
`COPYRIGHT INFRINGEMENT: AUSTRALIA
`
`44.
`
`45.
`
`46.
`
`Plaintiffs incorporate the allegations of paragraphs 1-43 above as if fully set forth herein.
`
`Plaintiff Pusztai holds a valid copyright in the Pusztai App.
`
`Pavlikhin, without authorization, copied substantial portions of the source code of the
`
`Pusztai App, and incorporated them into an unauthorized derivative work, the Infringing
`
`Pavlikhin App.
`
`47.
`
`From approximately June 2018, Apple distributed and communicated the Infringing
`
`Pavlikhin App to the public in Australia.
`
`48.
`
`By reason of Apple’s distribution of the Infringing Pavlikhin App, Apple is liable under
`
`Australian law to Plaintiffs for damages and Apple’s profits resulting from Apple’s distribution,
`
`publication and/or communication to the public of the Infringing Pavlikhin App. Further, the
`
`
`
`Case 1:21-cv-04813-PAE Document 1 Filed 05/29/21 Page 9 of 11
`
`Court should award damages for conversion of each copy of the Infringing Pavlikhin App, and
`
`also Plaintiffs’ costs and attorneys’ fees, pursuant to Australian law.
`
`COUNT 6
`COPYRIGHT INFRINGEMENT: CANADA
`
`49.
`
`50.
`
`51.
`
`Plaintiffs incorporate the allegations of paragraphs 1-48 above as if fully set forth herein.
`
`Plaintiff Pusztai holds a valid copyright in the Pusztai App.
`
`Pavlikhin, without authorization, copied substantial portions of the source code of the
`
`Pusztai App, and incorporated them into an unauthorized derivative work, the Infringing
`
`Pavlikhin App.
`
`52.
`
`From approximately June 2018, Apple distributed and made the Infringing Pavlikhin App
`
`available to the public in Canada.
`
`53.
`
`By reason of Apple’s distribution of the Infringing Pavlikhin App, Apple is liable under
`
`Canadian law to Plaintiffs for, at Plaintiffs’ election, either damages and Apple’s profits resulting
`
`from Apple’s distribution and making available of the Infringing Pavlikhin App, or statutory
`
`damages. Given Apple’s persistence in distributing and making available the Infringing
`
`Pavlikhin App long after it had notice of its infringing nature, the Court should also award
`
`Plaintiffs exemplary damages pursuant to Canadian law. Finally, the Court should award
`
`Plaintiffs their attorneys’ fees and costs, pursuant to Canadian law.
`
`COUNT 7
`COPYRIGHT INFRINGEMENT - PERMANENT INJUNCTION
`
`54.
`
`Plaintiffs incorporate the allegations of paragraphs 1-53 of this Complaint as if fully set
`
`forth herein.
`
`55.
`
`56.
`
`Plaintiff Pusztai holds a valid copyright in the Pusztai App.
`
`Plaintiff Pusztai registered the Pusztai App with the Register of Copyrights pursuant to
`
`U.S.C. § 411(a).
`
`
`
`Case 1:21-cv-04813-PAE Document 1 Filed 05/29/21 Page 10 of 11
`
`57.
`
`Apple has distributed the Infringing Pavlikhin App at issue without Plaintiffs’
`
`authorization in violation of 17 U.S.C. § 106, and on information and belief, despite repeated
`
`notice of the infringing nature of the Infringing Pavlikhin App, continued and still continues to
`
`do so, albeit in more limited circumstances, and to certify and enable the use of the Infringing
`
`Pavlikhin App on devices running Apple’s MacOS operating system.
`
`58.
`
`59.
`
`60.
`
`Apple performed the acts alleged in the course and scope of its business activities.
`
`As a direct and proximate result of Apple’s infringement, Plaintiffs have been damaged.
`
`Apple has limited, but not ceased, distributing and making the Infringing Pavlikhin App
`
`available to the public via the App Store, and continues to certify and enable the use of the
`
`Infringing Pavlikhin App on devices running Apple’s MacOS operating system. Accordingly,
`
`the threat of further damages is continuing and not wholly compensable by monetary damages.
`
`61.
`
`Pursuant to 17 U.S.C. §502, Plaintiffs are entitled to permanent injunctive relief barring
`
`defendants from further distribution of the Infringing Pavlikhin App, and further assistance to
`
`Pavlikhin in the form of certification of the Infringing Pavlikhin App.
`
`62. WHEREFORE, Plaintiffs pray for judgment against the defendants that:
`
`63.
`
`Apple and its affiliated entities, and all of those in active concert with them, be
`
`preliminarily and permanently enjoined from distributing the Infringing Pavlikhin App or aiding
`
`Pavlikhin in its distribution;
`
`64.
`
`Apple be required to pay Plaintiffs their actual damages and Apple’s and Pavlikhin’s
`
`profits attributable to the infringement as provided in 17 U.S.C. § 504, including pre-and post-
`
`judgment interest and, with respect to infringing distribution occurring after the registration of
`
`the Pusztai Apps, either (at Plaintiffs’ option) (i) Plaintiff’s actual damages and Apple’s and
`
`
`
`Case 1:21-cv-04813-PAE Document 1 Filed 05/29/21 Page 11 of 11
`
`Pavlikhin’s profits attributable to the infringement or (ii) statutory damages as provided in 17
`
`U.S.C. § 504;
`
`65.
`
`Apple be required to pay, as applicable, damages (including exemplary damages), profits,
`
`pre-and post-judgment interest, as applicable, and Plaintiff’s attorneys’ fees and costs, as
`
`warranted by 17 U.S.C. §§ 504 and 505 and the laws of each foreign jurisdiction specified in the
`
`Complaint; and
`
`66.
`
`Plaintiffs be awarded such other and further relief as the Court deems just and proper.
`
`JURY DEMAND
`
`Plaintiffs hereby demand a trial by jury of all issues so triable.
`
`DATED: May 29, 2021
`
`Respectfully submitted,
`
`/s/ Joshua Graubart
`
`LAW OFFICES OF JOSHUA GRAUBART, P.C.
`Joshua Graubart
`1177 Avenue of the Americas, 5th Floor
`New York, New York 10036
`TEL: (646) 781-9321
`FAX: (646) 224-8088
`jggraubart@graubartlaw.com
`
`Attorney for Plaintiffs
`
`
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