Case3:15-cv-03986 Document1 Filed09/01/15 Page1 of 11 1 2 3 4 5 6 7 8 KRONENBERGER ROSENFELD, LLP Karl S. Kronenberger (Bar No. 226112) Jeffrey M. Rosenfeld (Bar No. 222187) Ansel J. Halliburton (Bar No. 282906) 150 Post Street, Suite 520 San Francisco, CA 94108 Telephone: (415) 955-1155 Facsimile: (415) 955-1158 karl@KRInternetLaw.com jeff@KRInternetLaw.com ansel@KRInternetLaw.com Attorneys for Plaintiff PhantomALERT, Inc. 9 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 11 12 13 14 PHANTOMALERT, INC., a Delaware corporation, 15 16 17 18 19 20 Plaintiff, Case No. 15-cv-3986 COMPLAINT FOR DAMAGES AND EQUITABLE AND OTHER RELIEF v. DEMAND FOR JURY TRIAL GOOGLE INC., a Delaware corporation, WAZE, INC., a Delaware corporation, and DOES 1–10, inclusive, Defendants. 21 22 23 24 25 26 27 28 Case No. 15-cv-3986 COMPLAINT Case3:15-cv-03986 Document1 Filed09/01/15 Page2 of 11 1 2 Plaintiff PhantomALERT, Inc. (“PhantomALERT”), a Delaware corporation, by and through its attorneys of record, states and alleges as follows: 3 4 INTRODUCTION 1. PhantomALERT has created Global Positioning System (“GPS”)-based 5 navigation applications for mobile phones and GPS devices (the “PhantomALERT 6 Apps” or the “Apps”). 7 2. The PhantomALERT Apps notify users of the location of traffic conditions, 8 road hazards, and traffic enforcement monitors, such as speed cameras (collectively, 9 the “Points of Interest”). PhantomALERT licenses its Apps to end users and to GPS 10 11 device manufacturers. 3. Over the last seven years, PhantomALERT has engaged in a systematic 12 process of identifying the Points of Interest for its Apps, evaluating which Points of 13 Interest would be of importance to users of the Apps, vetting the accuracy of the Points 14 of Interest, organizing the Points of Interest, and refining the data associated with the 15 Points of Interest. 16 4. PhantomALERT created and maintains a proprietary database containing 17 information about the Points of Interest. 18 database in real time and then display the Points of Interest to users on a GPS- 19 generated electronic map. 20 5. The PhantomALERT Apps access the PhantomALERT’s copyrighted works include its Points of Interest 21 database; its website, which includes software for editing and maintaining the Points of 22 Interest database (the “Web App”); and software applications for various mobile 23 devices. PhantomALERT applied for a registration with the United States Copyright 24 Office covering its Points of Interest database and the source code for the Web App. 25 On August 20, 2015, the U.S. Copyright Office issued a copyright registration, No. 26 TXu001954208. 27 6. 28 Defendants own and operate the Waze application, which is a GPS-based geographical navigation application that competes with the PhantomALERT Apps. Case No. 15-cv-3986 1 COMPLAINT Case3:15-cv-03986 Document1 Filed09/01/15 Page3 of 11 1 7. Without any consent from PhantomALERT, Defendants repeatedly copied 2 PhantomALERT’s Points of Interest database, incorporated the data into the Waze 3 application, and displayed the data to users of the Waze application. 4 5 8. Defendants have wrongfully profited from their copying and use of the PhantomALERT Points of Interest database, and PhantomALERT has been harmed. 6 7 JURISDICTION AND VENUE 9. This Court has subject matter jurisdiction over this action pursuant to 28 8 U.S.C. §1331 for PhantomALERT’s claim under the Copyright Act, 17 U.S.C. §§501 et 9 seq. This Court has supplemental jurisdiction over PhantomALERT’s claims arising 10 under the laws of the State of California under 28 U.S.C. §1367 because they are so 11 related to PhantomALERT’s federal claim that they form part of the same case or 12 controversy under Article III of the United States Constitution. 13 14 15 10. Venue is proper pursuant to 28 U.S.C. §1391 because Defendants Google Inc. and Waze, Inc. reside in this district. 11. This Court has personal jurisdiction over Defendants because they are 16 headquartered in California, engaged in their misconduct from California, and have 17 substantial, continuous, and systematic contacts with California. 18 19 20 INTRADISTRICT ASSIGNMENT 12. Because this lawsuit is an intellectual property action, pursuant to Local Civil Rule 3-2, this action should be assigned on a district-wide basis. 21 22 23 24 25 26 27 28 PARTIES 13. Plaintiff PhantomALERT, Inc. is a Delaware corporation with its primary office in the District of Columbia. 14. Defendant Waze, Inc. (“Waze”) is a Delaware corporation with its primary office in Mountain View, California. 15. Defendant Google Inc. (“Google”) is a Delaware corporation with its primary office in Mountain View, California. 16. PhantomALERT does not know the true names and capacities, whether Case No. 15-cv-3986 2 COMPLAINT Case3:15-cv-03986 Document1 Filed09/01/15 Page4 of 11 1 individual, associate, corporate, or otherwise, of Defendants sued herein as Does 1–10 2 inclusive, and PhantomALERT therefore sues these Defendants by such fictitious 3 names. 4 capacities of Does 1–10 once they have been discovered. PhantomALERT is informed 5 and believes, and, on that basis, alleges that each Defendant sued herein by a fictitious 6 name is in some way liable and responsible to PhantomALERT based on the facts 7 alleged herein. PhantomALERT will amend this complaint to state the true names and 8 FACTUAL ALLEGATIONS 9 PhantomALERT’s Business 10 17. PhantomALERT began developing its PhantomALERT Apps in 2008. The 11 Apps display notifications of traffic conditions, speed restrictions, and police monitors on 12 GPS-generated maps. The Apps alert drivers to these various Points of Interest so that 13 the users can streamline their drives and avoid citations. 14 18. PhantomALERT maintains information regarding all of its Points of Interest 15 in a database. The PhantomALERT Apps access the database when a user enters into 16 the corresponding geographic area. The Apps then display the Points of Interest on a 17 GPS-generated map. 18 19. PhantomALERT uses a systematic process for selecting, coordinating, 19 and arranging information about the Points of Interest, which it then displays in the 20 Apps. 21 22 23 20. First, PhantomALERT allows users to submit potential Points of Interest to PhantomALERT through the Apps. 21. Second, PhantomALERT evaluates whether a Point of Interest submitted 24 by a user is a genuine Point of Interest based on a proprietary formula as well as human 25 judgment. Among other things, PhantomALERT determines whether multiple users of 26 the Apps have reported the same Point of Interest, thereby corroborating its existence. 27 PhantomALERT also determines whether the reported Point of Interest would be of 28 importance to users of the Apps. As an example, PhantomALERT may decide to omit a Case No. 15-cv-3986 3 COMPLAINT Case3:15-cv-03986 Document1 Filed09/01/15 Page5 of 11 1 “speed trap” Point of Interest from its Apps after determining that the speed trap does 2 not pose a significant risk to users of the Apps. 3 22. Third, PhantomALERT refines the geographic and other data associated 4 with the Point of Interest so that the Point of Interest is displayed in the most helpful 5 location on users’ GPS-generated maps, with the optimal amount of advance warning to 6 the user. As an example, the location from which a person reports a speed camera is 7 typically not the actual location of the camera. PhantomALERT edits the geographic 8 data associated with the speed camera and adds data to alert users before they drive 9 within range of the speed camera. 10 23. Finally, PhantomALERT reviews the timing of the various users’ reports 11 for a particular Point of Interest to ensure that the Point of Interest remains relevant. As 12 an example, PhantomALERT may remove a “speed trap” Point of Interest if no recent 13 reports of the trap have been made. 14 24. The PhantomALERT Apps do not seek to inform users of every traffic 15 condition, road hazard, and traffic enforcement monitor that has ever been reported or 16 that has ever existed. Rather, the Apps seek to inform users of the Points of Interest 17 that are most relevant to their driving. 18 25. Using the above-described process, PhantomALERT selects, coordinates, 19 and arranges the Points of Interest in a creative and original manner that seeks to 20 increase the usefulness of the Apps. PhantomALERT then stores the data regarding 21 the selection, coordination, and arrangement of the Points of Interest in its database. 22 26. On August 20, 2015, the United States Copyright Office issued a copyright 23 registration for the PhantomALERT App source code and the Points of Interest 24 database as a compilation, Registration No. TXu001954208. 25 26 27 28 Defendants’ Business 27. On information and belief, Defendant Waze, Inc. is a wholly owned subsidiary of Waze Mobile Ltd., an Israeli company formed in 2007. 28. Before being acquired by Google, Waze competed with Plaintiff in Case No. 15-cv-3986 4 COMPLAINT Case3:15-cv-03986 Document1 Filed09/01/15 Page6 of 11 1 operating a GPS-based application, which provides route information and traffic details, 2 including accidents, congestion, and speed and police traps. 3 29. Like the PhantomALERT App, users of the Waze application report 4 accidents, traffic conditions, speed and police traps through the application, and thereby 5 seek to streamline users’ driving experience. 6 30. Google is a multinational technology company specializing in Internet- 7 related products and services, including online advertising, cloud computing, software 8 development and licensing, and online mapping services. 9 10 31. On information and belief, in June 2013, Google acquired all of the assets and liabilities of Waze, and Waze was merged into Google. 11 32. Since June 2013, Google has operated the Waze application. 12 Defendants’ Misconduct 13 33. On July 30, 2010, Noam Bardin, the CEO of Waze, sent Yoseph 14 Seyoum, 1 the CEO of PhantomALERT, an email with a proposal to cooperate in the 15 operation of their respective GPS-mapping companies. 16 34. Later that same day, Bardin and Seyoum spoke by telephone. During the 17 call, Bardin proposed that Waze and PhantomALERT exchange their respective Points 18 of Interest databases. Because Waze did not appear to have substantial data to share, 19 Seyoum declined Bardin’s offer. 20 35. After Seyoum rejected Bardin’s offer to exchange databases, on 21 information and belief, Waze copied the PhantomALERT Points of Interest database in 22 its entirety in or around late 2012 without any authorization or consent. 23 36. Thereafter, on information and belief, Waze copied the PhantomALERT 24 Points of Interest database on multiple, additional occasions as the database was 25 updated, starting in or around late 2012. 26 37. On information and belief, after copying the PhantomALERT database, 27 1 28 Mr. Seyoum is also known by the name “Joe Scott,” which he uses in business dealings. Case No. 15-cv-3986 5 COMPLAINT Case3:15-cv-03986 Document1 Filed09/01/15 Page7 of 11 1 2 3 4 Waze incorporated the data into the Waze application in a modified form. 38. On information and belief, after copying the PhantomALERT database, Waze displayed the data to users through the Waze application. 39. Among other methods, PhantomALERT determined that Waze had 5 copied its Points of Interest database by observing the presence of fictitious Points of 6 Interest in the Waze application, which PhantomALERT had seeded into its own 7 database for the purpose of detecting copying. 8 40. On information and belief, Waze copied the PhantomALERT database on 9 multiple occasions after late 2012, re-incorporated the copied data into the Waze 10 application, and continued to display the Points of Interest data to the users of the Waze 11 application. 12 41. On information and belief, Google continued to operate the Waze 13 application, which copied, modified, and displayed copyrighted information from the 14 PhantomALERT Points of Interest database, after it acquired Waze in June 2013. 15 FIRST CAUSE OF ACTION 16 (COPYRIGHT INFRINGEMENT) 17 18 42. PhantomALERT repeats and incorporates by reference the allegations in Paragraphs 1–41 above. 19 43. 20 PhantomALERT 21 PhantomALERT in such a way as to render the database as a whole original. 22 23 24 25 26 27 28 44. The facts regarding database were the Points selected, of Interest coordinated, that and populate the arranged by PhantomALERT owns a valid copyright in the PhantomALERT Points of Interest database, which is an original, creative work. 45. PhantomALERT has an active and valid copyright registration covering the PhantomALERT database as a compilation, Registration No. TXu001954208. 46. On information and belief, without any authorization or consent, Defendants copied and reproduced the PhantomALERT database. 47. On information and belief, without any authorization or consent, Case No. 15-cv-3986 6 COMPLAINT Case3:15-cv-03986 Document1 Filed09/01/15 Page8 of 11 1 2 Defendants prepared derivative works of the PhantomALERT database. 48. On information and belief, without any authorization or consent, 3 Defendants distributed copies of the PhantomALERT database, and/or derivative works 4 thereof, to the public by sale, lease, or lending in the form of an end user license. 5 49. On information and belief, without any authorization or consent, 6 Defendants publicly displayed the PhantomALERT database and/or derivative works 7 thereof. 8 50. On information and belief, Defendants began copying, reproducing, 9 preparing derivative works, displaying, and licensing the PhantomALERT Points of 10 Interest database in late 2012, and Defendants continued to engage in this conduct 11 through and past June 2013. 12 13 14 51. On information and belief, in June 2013, Google acquired all of Waze’s liabilities, including all liability associated with Waze’s copyright infringement. 52. On information and belief, following Google’s acquisition of Waze, Google 15 incorporated aspects of the Waze application, including information from the 16 PhantomALERT Points of Interest database, into Google’s own mapping services. 17 Thereafter, on information and belief, Google reproduced the information from the 18 Points of Interest database, created derivative works from the information, displayed the 19 information, and sold or leased the information to users through an end user license 20 agreement. 21 22 53. As a result of Defendants’ conduct, Plaintiff has been harmed and Defendants have wrongfully profited. 23 SECOND CAUSE OF ACTION 24 (CONVERSION) 25 26 27 28 54. PhantomALERT repeats and incorporates by reference the allegations in Paragraphs 1–41 above. 55. PhantomALERT owns the data within the PhantomALERT Points of Interest database. Case No. 15-cv-3986 7 COMPLAINT Case3:15-cv-03986 Document1 Filed09/01/15 Page9 of 11 1 56. Without any authorization or consent, Waze copied the PhantomALERT 2 database and incorporated the data into the Waze application, thereby disposing of 3 PhantomALERT’s property in a manner inconsistent with PhantomALERT’s possession 4 of that property. 5 57. On information and belief, in June 2013, Google acquired all of Waze’s 6 liabilities, including all liability associated with Waze’s wrongful conversion of the 7 PhantomALERT database. 8 58. As a result of Defendants’ misconduct, PhantomALERT has been injured. 9 PRAYER FOR RELIEF 10 11 WHEREFORE, PhantomALERT prays for a judgment against Defendants as follows: 12 13 1. operating the Waze website and application; 14 15 For a preliminary and permanent injunction requiring Defendants to cease 2. For an award of damages and monetary equitable relief in an amount to be proven at trial, comprising the following: 16 a. Compensatory damages in the form of PhantomALERT’s lost 17 profits and Defendants’ wrongful profits, including through the 18 calculation of a reasonable royalty, pursuant to 17 U.S.C. §504; 19 b. 20 The amount of Defendants’ unjust enrichment pursuant to 17 U.S.C. §504; 21 c. 22 Compensatory damages pursuant to California common law for Defendants’ conversion of PhantomALERT’s database; 23 d. Punitive damages, pursuant to California Civil Code section 3294; 24 e. PhantomALERT’s costs of suit; 25 f. Pre-judgment interest to the extent allowed by law; and 26 // 27 // 28 // Case No. 15-cv-3986 8 COMPLAINT Case3:15-cv-03986 Document1 Filed09/01/15 Page10 of 11 1 3. Such other and additional relief as the Court deems just and proper. 2 3 Respectfully Submitted, 4 Dated: September 1, 2015 KRONENBERGER ROSENFELD, LLP 5 By: 6 s/ Karl S. Kronenberger Karl S. Kronenberger 7 Attorneys for Plaintiff PhantomALERT, Inc. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 15-cv-3986 9 COMPLAINT Case3:15-cv-03986 Document1 Filed09/01/15 Page11 of 11 DEMAND FOR JURY TRIAL 1 Plaintiff hereby demands a trial of this action by a jury as to all issues triable by a 2 3 jury. 4 5 Dated: September 1, 2015 KRONENBERGER ROSENFELD, LLP 6 By: 7 8 s/ Karl S. Kronenberger Karl S. Kronenberger Attorneys for Plaintiff PhantomALERT, Inc. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 15-cv-3986 10 COMPLAINT