1 Daniel T.

Rockey, SBN 178604

BULLIVANT HOUSER BAILEY PC
2 601 California Street, Suite 1800
San Francisco, California 94108
3 Telephone: 415.352.2700
Facsimile: 415.352.2701
4
Attorneys for Defendant
5 TIGHTROPE INTERACTIVE, INC.
6

7
UNITED STATES DISTRICT COURT
8
NORTHERN DISTRICT OF CALIFORNIA
9
SAN FRANCISCO DIVISION
10

11 GEEKNET, INC. a Delaware corporation, and Case No. CV 10-05244 EDL

VIDEOLAN, a French Not-For-Profit association,
12 TIGHTROPE INTERACTIVE INC.’S
Plaintiffs, ANSWER TO COMPLAINT AND
13 COUNTERCLAIMS (EXHIBITS A
vs. AND B)
14
TIGHTROPE INTERACTIVE, INC., a Delaware
15 corporation,
16 Defendant.
JURY TRIAL DEMANDED
17

18 Defendant Tightrope Interactive, Inc. (“Tightrope”) hereby answers the allegations of

19 the complaint filed by Plaintiffs Geeknet, Inc., and Videolan (collectively, “Plaintiffs”) as

20 follows:1

21 1. Admit.
22
2. Tightrope lacks sufficient information to admit or deny the allegations of
23
paragraph 2 and denies them on that basis.
24
3. Admit.
25

26
1
27 Defendant’s response to Plaintiffs’ allegations are organized in numbered paragraphs
corresponding to the numbered paragraphs in Plaintiffs’ complaint.
28
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TIGHTROPE INTERACTIVE, INC.’S ANSWER AND COUNTERCLAIMS
Case No. C 10-05244 EDL
 1 4. Admit.
2 5. Admit.
3 6. Admit.
4 7. Tightrope admits that VideoLAN distributes software on an “open source” basis
5 and that, when released on an open source basis, others may distribute VideoLAN’s software
6 pursuant to the GNU General Public License (“GPL”), but lacks sufficient information to admit
7 or deny the allegations concerning VideoLAN’s corporate organization and denies them on that
8 basis.
9 8. Admit.
10 9. Tightrope admits that individuals seeking to download the VLC Media Player
11 from the link at <videolan.org> are redirected to <sourceforge.net>, and that <sourceforge.net>
12 is registered to Geeknet, but otherwise lacks sufficient information to admit or deny the
13 allegations of paragraph 9 and denies them on that basis.
14 10. Tightrope denies that vlc is either distinctive or famous as a mark and lacks
15 sufficient information to admit or deny the remainder of the allegations of paragraph 10 and
16 denies them on that basis.
17 11. Tightrope admits that is has filed an application with the United States Patent and
18 Trademark office for the mark VLC, but alleges, on information and belief, that VideoLAN did
19 not oppose the application before the PTO. Tightrope lacks sufficient information to admit or
20 deny the allegations of paragraph 11 and denies them on that basis.
21 12. Admit.
22 13. Tightrope admits that it makes the VLC Media Player available for download in
23 accordance with the applicable GPL, but denies that the version it makes available is
24 “outdated.” Tightrope continues to distribute Version 0.8.6 at the request of certain of its
25 business partners because the version distributed by Tightrope does not include functionality
26 that would allow users to violate digital copyrights. Tightrope further alleges, on information
27 and belief, that subsequent versions of the VLC Media Player incorporate technology that
28 allows users to evade digital copyright restrictions. Finally, Tightrope responds, on information
–2–
TIGHTROPE INTERACTIVE, INC.’S ANSWER AND COUNTERCLAIMS
Case No. C 10-05244 EDL
 1 and belief, that although VideoLAN alleges that the version is “outdated,” VideoLAN itself
2 continues to distribute this “outdated” version (see
3 http://download.videolan.org/pub/videolan/vlc/0.8.6f/win32/vlc-0.8.6f-win32.exe).
4 14. Tightrope admits that at certain times in the past Tightrope used a download
5 process by which individuals may be offered the opportunity to download additional software
6 applications in addition to software selected by the individual, but denies that any such
7 programs are “malicious,” and further responds that Tightrope makes clear to the individual that
8 the decision whether to download additional programs is entirely optional, and is at all times
9 under the control of the individual. Tightrope denies the remainder of the allegations of
10 paragraph 14.
11 15. Denied.
12 16. Denied.
13 17. Paragraph 17 restates the preceding paragraphs and therefore requires no further
14 response.
15 18. Admit.
16 19. Denied.
17 20. Denied.
18 21. Denied.
19 22. Denied.
20 23. Denied.
21 24. Denied.
22 25. Tightrope denies that Plaintiffs are entitled to injunctive relief.
23 26. Paragraph 26 restates preceding paragraphs and therefore requires no further
24 response.
25 27. Admit.
26 28. Denied.
27 29. Denied.
28
–3–
TIGHTROPE INTERACTIVE, INC.’S ANSWER AND COUNTERCLAIMS
Case No. C 10-05244 EDL
 1 30. Paragraph 30 restates preceding paragraphs and therefore requires no further
2 response.
3 31. Denied.
4 32. Denied.
5 33. Denied.
6 34. Paragraph 34 contains only legal contentions and therefore requires no response.
7 35. Paragraph 35 restates preceding paragraphs and therefore requires no further
8 response.
9 36. Admit.
10 37. Denied.
11 38. Denied.
12 39. Admit.
13 40. Denied.
14 41. Denied.
15 42. Denied. Tightrope further denies that Business and Professions Code §§ 22947.2
16 or 22947.4 provide a cause of action for Plaintiffs.
17 43. Denied.
18 TIGHTROPE’S AFFIRMATIVE DEFENSES
19 TIGHTROPE’S FIRST AFFIRMATIVE DEFENSE
20 The allegations of the Complaint fail to state facts sufficient to constitute any cause of
21 action.
22 TIGHTROPE’S SECOND AFFIRMATIVE DEFENSE
23 Tightrope’s actions in making the VLC Media Player available for distribution are
24 lawful, are in accordance with and pursuant to the applicable GPL, and are expressly permitted
25 by VideoLAN under its terms of use and affirmative statements made by VideoLAN on its
26 official website.
27 ///
28 ///
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TIGHTROPE INTERACTIVE, INC.’S ANSWER AND COUNTERCLAIMS
Case No. C 10-05244 EDL
 1 TIGHTROPE’S THIRD AFFIRMATIVE DEFENSE
2 VideoLAN and/or Geeknet have failed to allege facts sufficient to establish standing to
3 assert the claims alleged in the complaint.
4 TIGHTROPE’S FOURTH AFFIRMATIVE DEFENSE
5 Plaintiffs have failed to allege sufficient facts to establish rights in VLC as a mark.
6 TIGHTROPE’S FIFTH AFFIRMATIVE DEFENSE
7 To the extent Plaintiffs have any rights in VLC as a mark, Tightrope’s reference to or
8 use of VLC to identify the VLC Media Player which it lawfully makes available for download
9 and in the domain name at which the VLC Media Player is lawfully made available, are
10 permitted under the principles of fair use and/or the first sale doctrine.
11 TIGHTROPE’S SIXTH AFFIRMATIVE DEFENSE
12 Neither Business and Professions Code §§ 22947.2 nor 22947.4 provides a cause of
13 action for Plaintiffs.
14 TIGHTROPE’S SEVENTH AFFIRMATIVE DEFENSE
15 Plaintiffs’ claims are barred in whole or in part by the doctrine of unclean hands, or
16 similar equitable doctrines.
17 TIGHTROPE’S EIGHTH AFFIRMATIVE DEFENSE
18 Plaintiffs’ claims are barred by the principle of equitable estoppel or similar equitable
19 doctrine in that Defendant reasonably relied on public statements made by Plaintiff VideoLAN
20 with respect to the rights to third parties to make the VLC Media Player available for
21 distribution.
22 TIGHTROPE’S COUNTERCLAIMS AGAINST GEEKNET
AND VIDEOLAN
23

24 1. Defendant Tightrope Interactive, Inc. (“Tightrope”) is a Delaware corporation

25 with its principal place of business in San Francisco, California.

26 2. Tightrope is an online marketing firm specializing in search engine marketing,

27 lead generation, affiliate marketing, and the development & distribution of branded, consumer

28 downloadable products.
–5–
TIGHTROPE INTERACTIVE, INC.’S ANSWER AND COUNTERCLAIMS
Case No. C 10-05244 EDL
 1 3. Plaintiff and Counter-Defendant VideoLAN is a collection of developers of
2 uncertain organizational structure responsible for developing the VLC Media Player and other
3 software available at <videolan.org>.
4 4. Plaintiff and Counter-Defendant Geeknet is, on information and belief, an online
5 marketing firm and affiliate marketing company which, among other things, offers hosting
6 services for VideoLAN with respect to the VLC Media Player. Geeknet is also a competitor of
7 Tightrope in the affiliate marketing field.
8 5. A significant portion of Tightrope’s business is focused on the operation of
9 <uberdownloads.com>, a website and a software distribution network at which Tightrope makes
10 available for download various open source, “shareware,” “freeware,” and “demo” software
11 programs. Uberdownloads.com is one of the world’s leading providers of free downloadable
12 software. Tightrope receives advertising and other revenues from individual who visit the site
13 and/or download programs from the site.
14 6. Among the open source and shareware software programs made available at
15 <uberdownloads.com> are Windows Media Player 11, Apple’s iTunes, Google Earth, AVG
16 Internet Security 2011 (a leading antivirus security software program), OpenOffice, and the
17 VLC Media Player. Tightrope makes such software available pursuant to and in accordance
18 with applicable open source or other license agreements.
19 7. In addition, where available, Tightrope provides a link to the software
20 developer’s website for users who seek additional information or support concerning a
21 particular program made available at <underdownloads.com>.
22 8. In some cases, when an individual chooses to download a free software program
23 from <underdownloads.com>, Tightrope uses its “Download Admin” service to administer the
24 download and installation process and to make recommendations concerning other useful
25 software programs that the individual may like and makes them available for download during
26 the installation process. At all times, the decision whether to accept and download software
27 recommended by Download Admin is entirely within the discretion of the individual. The
28 individual is entirely free to decline each recommendation and will still receive the originally
–6–
TIGHTROPE INTERACTIVE, INC.’S ANSWER AND COUNTERCLAIMS
Case No. C 10-05244 EDL
 1 selected software for free. In addition, each of the additional software programs recommended
2 by Download Admin is believed to be free of viruses or other malicious content.
3 9. One of the most popular and most frequently downloaded software programs at
4 <uberdownloads.com> is the VLC Media Player. The download page for the VLC Media
5 Player clearly informs users that the VLC Media Player is developed by VideoLAN. The page
6 also expressly states that “VLC media player is a free software media player written by the
7 VideoLAN project,” and prominently provides a link to <videolan.org>. In addition, prior to
8 downloading the VLC Media Player, users are required to agree to the GNU General Public
9 License V. 2.0 and are provided with appropriate copyright notice and disclaimers of warranty.
10 Tightrope complies in all respects with the terms of the applicable GPL.
11 10. Tightrope also operates the site at <vlc.us.com> and makes the VLC Media
12 Player available for download at <vlc.us.com> as well. As with <uberdownloads.com>, the
13 website at <vlc.us.com> expressly states that “VLC is developed by the VideoLan Project as a
14 free way for everyone to play their videos.” The website further states that “Developers can
15 download the latest VLC source code here” and provides a link to the official VideoLAN
16 website where the source code can be obtained. And, as at <uberdownloads.com>, visitors to
17 <vlc.us.com> are required to agree to the GNU GPL 2.0 before downloading the VLC Media
18 Player and the required copyright notice and warranty disclaimers are provided.
19 VideoLAN’s Wrongful DMCA Take Down Request
20 11. On or about February 19, 2010, Tightrope was notified by its webhosting
21 company, Rackspace, that it had received a take-down request purportedly pursuant to the
22 Digital Millennium Copyright Act, and attaching the request. A true and correct copy of the
23 February 19, 2010 take down notice is attached hereto as Exhibit A (“VideoLAN DMCA
24 Notice”).
25 12. On information and belief, the VideoLAN DMCA Notice was sent by Clement
26 Stenac, Executive Managing Director of VideoLAN. The VideoLAN DMCA Notice demanded
27 that the following websites owned and operated by Tightrope be disabled:
28
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TIGHTROPE INTERACTIVE, INC.’S ANSWER AND COUNTERCLAIMS
Case No. C 10-05244 EDL
 1 <uberdownloads.com>, <uberdownloads.com/apps/lps/index.php?product=vlc>, and
2 <sourcemirror.com/VLCfree_8676.exe>.
3 13. As a result of, and in response to, the VideoLAN DMCA Notice, Tightrope’s
4 websites were disabled. Tightrope promptly sent a counter notification pursuant to the DMCA
5 affirming that it was lawfully entitled to distribute the subject software and was not in violation
6 of any copyright. Although Tightrope’s website was eventually restored, as a result of
7 VideoLAN’s take down notice, Tightrope suffered lost revenues and profits while its sites were
8 down and continues to suffer harm from lost goodwill and harm to its reputation. Tightrope was
9 additionally forced to incur additional costs associated with responding to the take down notice
10 and restoring its websites.
11 The VideoLan DMCA Notice Was Sent In Bad Faith, Without Any Lawful Basis,
12 In An Effort to Harm Tightrope
13 14. Contrary to the requirements of the DMCA, the VideoLAN DMCA Notice failed
14 to identify the particular copyrighted work which was purportedly infringed; instead simply
15 providing that the original work was located at <http://www.videolan.org>. The website at
16 <http://www.videolan.org> includes extensive text and offers access to various software
17 programs, including not only the VLC Media Player, but also x264, DVBlast!, libdvdcss, and
18 VLMa, as well other content which may or may not be subject to copyright protection. Thus, by
19 simply referring to <http://www.videolan.org> the notice fails to identify the particular work
20 which is alleged to be infringed.
21 15. In addition, the VideoLAN DMCA Notice stated that:
22 I have not authorized this use of my copyrighted work, and it is
not authorized by law. I thus have a good faith belief that this is
23 an infringing copy of my copyrighted work.
24 The VideoLAN DMCA Notice also stated that “VideoLAN is the owner of the exclusive right
25 that is allegedly infringed.”
26 ///
27 ///
28 ///
–8–
TIGHTROPE INTERACTIVE, INC.’S ANSWER AND COUNTERCLAIMS
Case No. C 10-05244 EDL
 1 16. Mr. Stenac and VideoLAN knew and understood at all times relevant herein that
2 the VLC Media Player made available at <uberdownloads.com> was open source and could be
3 freely distributed in accordance with the GPL, and the above statements were false. In fact,
4 VideoLAN unambiguously states on its official website:
5 May I redistribute a piece of VideoLAN software?
6 Yes, you may distribute an original or a modified version of a
piece of VideoLAN software as long as you comply with its
7 license terms. It is the GNU General Public License Version 2
(referred herein as GPL), and it is in the file named COPYING in
8 our products.
9 Note: You do not need to ask the VideoLAN team the permission
to do so!
10

11 17. Indeed, not only can third parties make the VLC Media Player available for
12 download, but VideoLAN makes clear that it even permits parties to sell the VLC Media Player
13 because these sales provide free advertising for VideoLAN:
14 Third parties are selling your software. Is this legal?
15 Yes, absolutely.
Our licensing terms explicitly allow selling or sublicensing our
16 software. We allow that very much on purpose. For instance, we
like computer magazines to include our software on their CDs,
17 and we also like Linux distributions, PC manufacturers and
storage device vendors to pre-install our software and make
18 money out of it. For us, that is basically zero-cost advertisement.
19 In response to questions concerning the propriety of selling open source software, VideoLAN
20 responds that “it is impossible to differentiate good and bad sales, so we allow all of them.
21 Besides, we are open-source enthusiasts, not lawyers.”
22 18. The Vide VideoLAN oLan DMCA Notice was sent by VideoLAN in bad faith,
23 and without any reasonable or lawful basis, in violation of 15 USC § 512(f). On information
24 and belief, the take down notice was sent by VideoLAN at the behest of Geeknet and in order to
25 harm Tightrope, which is a competitor to Geeknet.
26 Geeknet’s Wrongful DMCA Take Down Request
27 19. On or about June 30, 2010, Tightrope received an email purporting to be a
28 DMCA take down request from Adam Heller, General Counsel of Geeknet.
–9–
TIGHTROPE INTERACTIVE, INC.’S ANSWER AND COUNTERCLAIMS
Case No. C 10-05244 EDL
 1 20. John Nguyen, CEO of Tightrope, contacted Heller and spoke with him on the
2 telephone. Nguyen inquired as to the basis for Geeknet’s concerns and explained that Tightrope
3 was in all respects compliant with the GPL applicable to the VLC Media Player.
4 21. Heller stated to Nguyen that he would get back to Tightrope with an explanation
5 of its concerns. Heller failed get back to Nguyen or Tightrope.
6 22. Instead, approximately one week later, on or about July 6, 2010, Tightrope was
7 again notified by its webhosting company that it was the subject of a DMCA take down request.
8 A true and correct copy of the Geeknet DMCA Notice is attached hereto as Exhibit B (“Geeknet
9 DMCA Notice”). This take down request came not from VideoLan but rather from Heller at
10 Geeknet, Inc.
11 23. As with the VideoLAN DMCA Notice, the Geeknet DMCA Notice failed to
12 identify the particular copyrighted work which was allegedly being infringed, stating only that
13 “The copyrighted work at issue is the text that appears on www.videolan.org.”
14 24. The notice further stated that “The URLs where our copyrighted material is
15 located include http://downloadadmin.com/downloads/d/us/56-3.”
16 25. In the Notice, Heller also asserted that “I have a good faith belief that use of the
17 copyrighted materials described above as allegedly infringing is not authorized by the copyright
18 owner, its agent, or the law.” He additionally stated that: “I swear, under penalty of perjury, that
19 the information in the notification is accurate and that I am the copyright owner or am
20 authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
21 26. Tightrope again submitted a counter-notification to its webhosting company and
22 to Geeknet, affirming its right to distribute the software and its compliance with the GPL. In
23 response, Heller sent a message to the webhosting company falsely contending that Tightrope
24 was in violation of certain provisions of the GPL. Tightrope again responded, explaining that
25 certain of the provisions cited by Geeknet were inapplicable, and that Tightrope complied with
26 the other cited provisions, as Geeknet could easily surmise from a review of Tightrope’s
27 websites.
28 ///
– 10 –
TIGHTROPE INTERACTIVE, INC.’S ANSWER AND COUNTERCLAIMS
Case No. C 10-05244 EDL
 1 27. As a result of the Geeknet DMCA Notice, Tightrope’s website at
2 http://downloadadmin.com/downloads/d/us/56-3 was disabled, causing Tightrope to suffer lost
3 revenues and profits and other costs. Although Tightrope eventually got its websites restored, it
4 nevertheless suffered and harm continues to suffer harm from lost goodwill and harm to its
5 reputation.
6 The Geeknet DMCA Notice Was Sent In Bad Faith, Without Any Lawful Basis, In
7 Order to Harm Tightrope
8 28. As noted, the Geeknet DMCA Notice failed to identify the particular work which
9 was allegedly being infringed. In addition, the Geeknet DMCA Notice falsely stated that
10 Tightrope was not authorized to distribute the VLC Media Player, despite the fact that Geeknet
11 was at all times aware that the VLC Media Player was open source, and was being distributed
12 pursuant to and in accordance with the applicable GPL. The Geeknet DMCA Notice is also
13 false in that it states that the allegedly infringed software is subject of an exclusive right when,
14 in fact, Geeknet was at all times aware that the VLC Media Player is open source and may be
15 lawfully distributed by third parties.
16 29. On information and belief, Geeknet is neither the owner nor in possession of
17 exclusive rights with respect to the copying or distribution of VLC Media Player.
18 TIGHTROPE’S FIRST COUNTERCLAIM
Violation of DMCA
19 (against Videolan)
20 30. Tightrope hereby repeats and realleges the preceding allegations as if set forth in
21 their entirety herein.
22 31. Pursuant to 15 USC §512(c)(3), for a DMCA notification to be effective it must
23 include, without limitation, an “Identification of the copyrighted work claimed to have been
24 infringed,” as well as the “material that is claimed to be infringing . . . and information
25 reasonably sufficient to permit the service provider to locate the material.”
26 32. Pursuant to 15 USC §512(f), “Any person who knowingly materially
27 misrepresents under this section - (1) that material or activity is infringing . . . shall be liable for
28 any damages, including costs and attorneys’ fees, incurred by the alleged infringer . . . who is
– 11 –
TIGHTROPE INTERACTIVE, INC.’S ANSWER AND COUNTERCLAIMS
Case No. C 10-05244 EDL
 1 injured by such misrepresentation, as the result of the service provider relying upon such
2 misrepresentation in removing or disabling access to material or activity claimed to be
3 infringing, or in replacing the material.”
4 33. By sending the VideoLAN DMCA Notice, VideoLan violated the provisions of
5 15 USC §512(c) and 512(f) for the following reasons:
6 a. VideoLAN failed to identify the work allegedly infringed or provide sufficient
7 information to identify the material, forcing Rackspace to disable Tightrope’s
8 entire website and thereby causing harm to Tightrope;
9 b. VideoLAN falsely stated that Tightrope’s websites were infringing on
10 VideoLAN’s copyright to the VLC Media Player, when in fact, VideoLAN was
11 at all times aware that the VLC Media Player was open source and, as it stated in
12 its own words on its website, could be freely distributed by third parties in
13 accordance with the GPL;
14 c. VideoLAN falsely stated that it had the exclusive right to copy or distribute the
15 VLC Media Player, when in fact, it was at all times aware that the VLC Media
16 Player was open source and, as it stated in its own words on its website, could be
17 freely distributed by third parties in accordance with the GPL;
18 34. As a proximate result of VideoLAN knowingly and materially misrepresenting
19 that Tightrope was engaging in infringing activity, Tightrope suffered damages according to
20 proof which include, but are not limited to, lost revenues and profits, consequential damages
21 associated with the disabling of its websites and the restoration of the websites, harm to its good
22 will and reputation, and attorneys’ fees and costs.
23 TIGHTROPE’S SECOND COUNTERCLAIM
Violation of DMCA
24 (against Geeknet)
25 35. Tightrope hereby repeats and realleges the preceding allegations as if set forth in
26 their entirety herein.
27 36. Pursuant to 15 USC §512(c)(3), for a DMCA notification to be effective it must
28 include, without limitation, an “Identification of the copyrighted work claimed to have been
– 12 –
TIGHTROPE INTERACTIVE, INC.’S ANSWER AND COUNTERCLAIMS
Case No. C 10-05244 EDL
 1 infringed,” the “material that is claimed to be infringing . . . and information reasonably
2 sufficient to permit the service provider to locate the material.”
3 37. Pursuant to 15 USC §512(f), “Any person who knowingly materially
4 misrepresents under this section - (1) that material or activity is infringing . . . shall be liable for
5 any damages, including costs and attorneys’ fees, incurred by the alleged infringer . . . who is
6 injured by such misrepresentation, as the result of the service provider relying upon such
7 misrepresentation in removing or disabling access to material or activity claimed to be
8 infringing, or in replacing the material.”
9 38. By sending the Geeknet DMCA Notice, Geeknet violated the provisions of 15
10 USC §512(c) and 512(f) for the following reasons:
11 a) Geeknet failed to identify the work allegedly infringed or provide sufficient
12 information to identify the material, forcing Rackspace to disable Tightrope’s
13 entire website and causing substantial harm to Tightrope;
14 b) Geeknet falsely stated Tightrope’s websites were infringing on its copyright to
15 the VLC Media Player, when in fact, Geeknet was at all times aware that the
16 VLC Media Player was open source and, as it stated in its own words on its
17 website, could be freely distributed by third parties in accordance with the GPL;
18 c) Geeknet falsely stated that it had the exclusive right to copy or distribute the
19 VLC Media Player, when in fact, it was at all times aware that the VLC Media
20 Player was open source and, as it stated on VideoLAN’s website, could be freely
21 distributed by third parties in accordance with the GPL;
22 39. As a proximate result of Geeknet knowingly and materially misrepresenting that
23 Tightrope was engaging in infringing activity, Tightrope suffered damages according to proof
24 which include, but are not limited to, lost revenues and profits, consequential damages
25 associated with the disabling of its websites and the restoration of the websites, harm to its good
26 will and reputation, and attorneys’ fees and costs.
27 ///
28 ///
– 13 –
TIGHTROPE INTERACTIVE, INC.’S ANSWER AND COUNTERCLAIMS
Case No. C 10-05244 EDL
 1 TIGHTROPE’S THIRD COUNTERCLAIM
Intentional Interference with Prospective Economic Advantage
2 (against Videolan and Geeknet)
3 40. Tightrope hereby repeats and realleges the preceding allegations as if set forth in
4 their entirety herein.
5 41. Tightrope operates a number of successful websites which generate significant
6 advertising and other revenues for Tightrope, including <uberdownloads.com>, <vlc.us.com>
7 and <downloadadmin.com>.
8 42. VideoLAN and Geeknet were at all times aware that the foregoing websites were
9 operated for profit and for the purpose of generating advertising and referral revenues in
10 connection with the downloading of open source and other software.
11 43. VideoLAN and Geeknet knowingly and intentionally sought to shut down
12 Tightrope’s websites by, inter alia, causing the websites to be disabled by Tightrope’s
13 webhosting company.
14 44. VideoLAN and Geeknet took this action in order to harm Tightrope and did, in
15 fact, harm Tightrope, as alleged herein, including by causing Tightrope to suffer lost profits,
16 harm to its good will and reputation, and consequential damages associated the loss of the
17 websites and efforts to restore it, including attorneys’ fees and costs.
18

19

20
21

22
23

24

25 ///
26 ///
27 ///
28 ///
– 14 –
TIGHTROPE INTERACTIVE, INC.’S ANSWER AND COUNTERCLAIMS
Case No. C 10-05244 EDL
 1 DEFENDANT’S PRAYER
2 WHEREFORE, Defendant prays for judgment as follows:
3 1. That Plaintiffs take nothing by their Complaint;
4 2. That Judgment be entered in favor of Defendant and against Plaintiffs on
5 Plaintiffs’ claims and in favor of Tightrope on all Counterclaims;
6 3. That Defendants be awarded their reasonable attorneys’ fees and costs of suit
7 herein under the Copyright Act (17 USC §505) and federal common law concerning suits under
8 the Lanham Act, and pursuant to the Digital Millennium Copyright Act, 15 USC § 512(f);
9 4. That Defendants be awarded their costs of suit herein; and
10 5. For such other and further relief as this Court may deem proper.
11

12

13 DATED: December 15, 2010

14 BULLIVANT HOUSER BAILEY PC

15

16 By /S/
Daniel T. Rockey
17
Attorneys for Defendant
18 TIGHTROPE INTERACTIVE, INC.
12973233.2
19

20
21

22
23

24

25

26

27

28
– 15 –
TIGHTROPE INTERACTIVE, INC.’S ANSWER AND COUNTERCLAIMS
Case No. C 10-05244 EDL
EXHIBIT A
From: Sydney Schneider [mailto:sschneid@rackspace.com]
Sent: Friday, February 19, 2010 8:46 AM
To: john.nguyen@tightropeinteractive.com
Subject: DMCA per ticket 22710

Hello,

:HKDYHUHFHLYHGDQRWLFHSXUVXDQWWRWKH'LJLWDO0LOOHQQLXP&RS\ULJKW$FW³DMCA´
from VideoLan regarding certain content appearing at the above-referenced website (the
³:HEVLWH´ 7KLVFRPSDQ\DOOHJHVWKDWPDWHULDOSRVWHGRQ\RXUFRPSDQ\¶VZHEVLWHLQIULQJHVRQ
their copyright. Please remove the content claimed to be infringing from the Website and confirm
to me in writing that you have done so by 8:00 A.M. Central Time, Tuesday, February 23,
2010. If the allegedly infringing content is not removed and/or I have not received your written
confirmation by that time, Rackspace will suspend network access to the server(s) hosting the
Website.

Please note that you may provide a counter notification, stating that the posted material is not infringing
WKHDOOHJHGFRS\ULJKWLQDFFRUGDQFHZLWKWKHSURYLVLRQVRI86&†JWR5DFNVSDFH¶V
designated agent:

Director of Compliance
Rackspace Hosting
5000 Walzem Rd.
San Antonio, Texas 78218
abuse@rackspace.com

Within 14 business days of receiving a counter notification meeting the requirements of 17 U.S.C. §
512(g)(3), Rackspace will cease disabling access to the server(s) and/or allow the allegedly infringing
content to be restored unless Rackspace first receives a notice from the complaining party in
accordance with 17 U.S.C. §512(g)(2)(C).

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VKDOOEHOLDEOHIRUDQ\GDPDJHVLQFOXGLQJFRVWVDQGDWWRUQH\V¶IHHVLQFXUUHGE\«DVHUYLFHSURYLGHU
who is injured by such misrepresentation, as the result of the service provider relying upon such
PLVUHSUHVHQWDWLRQ«LQUHSODFLQJWKHUHPRYHGPDWHULDORUFHDVLQJWRGLVDEOHDFFHVVWRLW´

Under 17 U.S.C. § 512(i)(1)(A), we are required to terminate the accounts of repeat infringers. While,
we are not taking this action at this point, we may be required to terminate your account in the event that
multipleDMCA notifications involving your internet site is received.

If you have any questions regarding the above, please do not hesitate to call me at (210) 312-4299.

Regards,

Sydney Schneider
Rackspace AUP

Dear Rackspace,
Dear Rackspace,

A user of the domain Uberdownloads.com hosting downloadable software at

Rackspace is violating the copyright and trademark of VideoLan, producer of
VLC media player. I expect prompt action in disabling the domain name and
the hosting account. Below are your requirements 1-6 as required by the
DMCA.

Here are the particulars:

1. An electronic signature of the copyright owner, or a person authorized to

act on behalf of the owner, of an exclusive copyright that has allegedly
been infringed.

This document is signed by electronic signature by me Clément Stenac,

Executive Managing Director, VideoLan. This message contains my electronic
signature, acting on behalf of the exclusive copyright holder of the work in
question and therefore am authorized to act in this matter.

2. Identification of the copyrighted work claimed to have been infringed,

or, if multiple copyrighted works at a single online site are covered by a
single notification, a representative list of such works on that site.

The particular copyrighted software are videos owned and distributed

exclusively by VideoLan cover VLC Media Player.

The original work is located on my website at the following URL:

http://www.videolan.org

3. Identification of the material that is claimed to be infringing or to be

the subject of infringing activity and that is to be removed or access to
which is to be disabled, and information reasonably sufficient to permit
Rackspace to locate the material.

The infringing copy of my work, embedded with malware, is here and in

additional webpages:

http://www.uberdownloads.com
http://files.uberdownloads.com/apps/lps/index.php?product=vlc
http://www.sourcemirror.com/VLCfree_8676.exe

4. Information reasonably sufficient to permit Rackspace to contact the

Complaining Party, such as an address, telephone number, and, if available,
an electronic mail address at which the Complaining Party may be contacted.

Address : VideoLan
18, rue Charcot
75013 Paris
France
vlctrademark@gmail.com

5. A statement that the Complaining Party has a good faith belief that use
of the material in the manner complained of is not authorized by the
copyright owner, its agent, or the law.

I have not authorized this use of my copyrighted work, and it is not

authorized by the law. I thus have a good-faith belief that this is an
infringing copy of my copyrighted work.

6. A statement that the information in the notification is accurate, and

under penalty of perjury, that the Complaining Party is the owner, or is
authorized to act on behalf of the owner, of an exclusive right that is
allegedly infringed.

The information in the notification is accurate, and under penalty of

perjury, VideoLan is the owner of the exclusive right that is allegedly
perjury, VideoLan is the owner of the exclusive right that is allegedly
infringed.

Thank you for your prompt attention to this matter.

Signed electronically,

Clément Stenac
Executive Managing Director
VideoLan

3 Please consider the environment before printing this e-mail.

Confidentiality Notice: This e-mail message (including any attached or
embedded documents) is intended for the exclusive and confidential use of the
individual or entity to which this message is addressed, and unless otherwise
expressly indicated, is confidential and privileged information of Rackspace.
Any dissemination, distribution or copying of the enclosed material is prohibited.
If you receive this transmission in error, please notify us immediately by e-mail
at abuse@rackspace.com, and delete the original message.
Your cooperation is appreciated.

Pasted from <https://mail.google.com/a/tightropeinteractive.com/?ui=2&view=bsp&ver=ohhl4rw8mbn4>

EXHIBIT B
As per ticket #51351

Dan Ross <dan.ross@rackspace.com> Tue, Jul 6,

2010 at
10:18 AM
To: "john.nguyen@tightropeinteractive.com" <john.nguyen@tightropeinteractive.com>
x Hello,
:HKDYHUHFHLYHGDQRWLFHSXUVXDQWWRWKH'LJLWDO0LOOHQQLXP&RS\ULJKW$FW³'0&$´IURP*HHNQHW,QF
regarding certain content appearing at the above-UHIHUHQFHGZHEVLWHWKH³:HEVLWH´$FRS\RIWKLVQRWLFHKDV
been sent to you via email at john.nguyen@tightropeinteractive.com. This company alleges that material posted
RQ\RXUFRPSDQ\¶VZHEVLWHLQIULQJHVRQWKHLUFRS\ULJKW3OHDVHUHPRYHWKHFRQWHQWFODLPHGWREHLQIULQJLQJIURP
the Website and confirm to me in writing that you have done so by 8:00 A.M. Central Time, Thursday July 8,
2010. If the allegedly infringing content is not removed and/or I have not received your written confirmation by
that time, Rackspace will suspend network access to the server(s) hosting the Website.
Please note that you may provide a counter notification, stating that the posted material is not infringing the
DOOHJHGFRS\ULJKWLQDFFRUGDQFHZLWKWKHSURYLVLRQVRI86&†JWR5DFNVSDFH¶VGHVLJQDWHGDJHQW
Director of Compliance
Rackspace, Ltd.
9725 Datapoint Dr, Suite 600
San Antonio, Texas 78229
abuse@rackspace.com
Within 14 business days of receiving a counter notification meeting the requirements of 17 U.S.C. §512(g)(3),
Rackspace will cease disabling access to the server(s) and/or allow the allegedly infringing content to be
restored unless Rackspace first receives a notice from the complaining party in accordance with 17 U.S.C. §
512(g)(2)(C).
3OHDVHQRWHWKDW86&†ISURYLGHVWKDW³>D@Q\SHUVRQZKRNQRZLQJO\PDWHULDOO\PLVUHSUHVHQWVXQGHUWKLV
VHFWLRQ«WKDWPDWHULDORUDFWLYLW\ZDVUHPRYHGRUGLVDEOHGE\PLVWDNHRUPLVLGHQWLILFDWLRQ«VKDOOEHOLDEOHIRU
DQ\GDPDJHVLQFOXGLQJFRVWVDQGDWWRUQH\V¶IHHVLQFXUUHGE\«DVHUYLFHSURYLGHUZKRLVLQMXUHGE\VXFK
PLVUHSUHVHQWDWLRQDVWKHUHVXOWRIWKHVHUYLFHSURYLGHUUHO\LQJXSRQVXFKPLVUHSUHVHQWDWLRQ«LQUHSODFLQJWKH
UHPRYHGPDWHULDORUFHDVLQJWRGLVDEOHDFFHVVWRLW´
Under 17 U.S.C. § 512(i)(1)(A), we are required to terminate the accounts of repeat infringers. While, we are not
taking this action at this point, we may be required to terminate your account in the event that multiple DMCA
notifications involving your internet site is received.
If you have any questions regarding the above, please do not hesitate to call me at (210) 312-3359.
Regards,
Dan Ross
Rackspace AUP
------------------------------------------
Complaint attached.

Confidentiality Notice: This e-mail message (including any attached or

embedded documents) is intended for the exclusive and confidential use of the
individual or entity to which this message is addressed, and unless otherwise
expressly indicated, is confidential and privileged information of Rackspace.
Any dissemination, distribution or copying of the enclosed material is prohibited.
If you receive this transmission in error, please notify us immediately by e-mail
at abuse@rackspace.com, and delete the original message.
Your cooperation is appreciated.

Pasted from <https://mail.google.com/a/tightropeinteractive.com/?ui=2&ik=32c5d8fbe6&view=pt&q=dmca&search=query&msg=129a8c45ab9a5f10>

dmca vlc 1