微软近日向西雅图地区法院提起诉讼，微软表示称Verizon的一个IP地址——74.111.202.30—— 被用于激活了几百个Windows 7拷贝，微软怀疑拥有IP 74.111.202.30的人JOHN DOES卷入了盗版活动。Windows 7用户在激活微软产品时会自动向微软提供激活日期和IP地址等信息。微软的取证工具允许该公司分析数以10亿计的软件激活模式。微软发现了数百个源自74.111.202.30的产品激活，根据Windows激活特征相信被告使用同一IP激活了盗版软件。
微软表示被告使用了从供应链窃取或从未发行或超过授权限制多次使用Windows产品密钥去激活了几百Windows 7拷贝。
微软向西雅图地区法院英文诉讼书原文：
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
MICROSOFT CORPORATION, a Washington
corporation,
Plaintiff,
v.
JOHN DOES 1 – 10 using IP address
74.111.202.30,
Defendants.
No. 2:15-cv-00663
COMPLAINT FOR DAMAGES
AND EQUITABLE RELIEF
Plaintiff Microsoft Corporation (“Microsoft”) files this Complaint against Defendants
John Does 1-10 using IP address 74.111.202.30 (“Defendants”), alleging as follows:
I. INTRODUCTION
1. This is an action for copyright infringement, trademark infringement, imposition
of a constructive trust, and an accounting of Defendants’ ill-gotten gains.
2. On information and belief, Defendants have installed and activated unlicensed
Microsoft software on hundreds of computer systems using unauthorized product keys,
including certain keys known to have been stolen from Microsoft’s supply chain.
3. Based on the volume and pattern of their activation activity, on information and
belief, Defendants appear to consist of one or more commercial entities that subsequently
distributed those systems to customers who, on information and belief, were unaware they were
receiving pirated software.
4. Microsoft is a Washington corporation with its principal place of business in
Redmond, Washington. Microsoft develops, markets, distributes, and licenses computer
software, among other products and services.
5. The true identities of Defendants are not presently known to Microsoft. On
information and belief, Defendants are in possession or control of the Internet Protocol (“IP”)
address 74.111.202.30, which was used by Defendants in furtherance of the unlawful conduct
alleged herein. On information and belief, this IP address is assigned to Verizon Online LLC,
an Internet Service Provider, which in turn assigned it to the Defendants for their use at certain
times relevant to this complaint.
III. JURISDICTION & VENUE
6. The Court has subject matter jurisdiction over Microsoft’s claims for trademark
infringement, copyright infringement, and related claims pursuant to 15 U.S.C. § 1121, 17
U.S.C. § 501, and 28 U.S.C. §§ 1331 and 1338(a). The Court also has subject matter
jurisdiction under 28 U.S.C. § 1332 because on information and belief, this action is between
citizens of different states and the matter in controversy exceeds $75,000, exclusive of interest
and costs.
7. The Court has personal jurisdiction over Defendants because they purposefully
directed their unlawful activities at Washington, and Microsoft’s claims arise from those
activities. In activating or attempting to activate pirated Microsoft software, as described
below, Defendants reached out and contacted Microsoft servers in Washington, and transmitted
information to those servers and Microsoft in Washington. In addition, Defendants expressly
aimed their conduct at Washington because they (1) had actual or constructive knowledge of
Microsoft’s intellectual property rights (including Microsoft’s registered copyrights and
trademarks) and Microsoft’s residence in Washington; (2) acted, at a minimum, with willful
blindness to, or in reckless disregard of, Microsoft’s rights; and (3) knew or should have known
that their conduct would cause harm to Microsoft in Washington. See Wash. Shoe Co. v. A-Z
Sporting Goods, Inc., 704 F.3d 668 (9th Cir. 2012).
8. Venue is proper in this Court pursuant to 28 U.S.C. § 1400(a) because
Defendants are subject to personal jurisdiction in the Western District of Washington. See
Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124 (9th Cir. 2010).
9. Pursuant to Local Civil Rule 3(d), intra-district assignment to the Seattle
Division is proper because the claims arose in this Division, where (a) Microsoft resides,
(b) the injuries giving rise to suit occurred, and (c) Defendants directed their unlawful conduct.
IV. FACTS COMMON TO ALL CLAIMS
A. The Global Problem of Software Piracy
10. Software developers lose billions of dollars in annual revenue from software
piracy, namely, the unauthorized and unlawful copying, downloading, and distributing of
copyrighted and trademarked software and related components. In 2013, the commercial value
of pirated software in the United States was in excess of $9.7 billion. See Business Software
Alliance, The Compliance Gap: Global Software Survey (June 2014),
http://globalstudy.bsa.org/2013/downloads/studies/2013GlobalSurvey_Study_en.pdf.
11. One prominent form of software piracy is known as “hard-disk loading”—the
unauthorized copying and installation of infringing software on devices and offering those
devices in competition with, and often for lower prices than, devices pre-installed with legally
licensed copies of software.
12. Software developers, like Microsoft, are not the only victims of software piracy.
Microsoft’s customers are also victims as they are often deceived by distributors of pirated
software who often go to great lengths to make the software appear genuine. When this occurs,
customers may unwittingly expose themselves to security risks associated with the use of
pirated software. See Federal Bureau of Investigation, Consumer Alert: Pirated Software May
Contain Malware, Aug. 1, 2013, at http://www.fbi.gov/news/stories/2013/august/piratedsoftware-
may-contain-malware/ (noting the relatively greater risk that pirated software is
infected with malicious software, or “malware,” which can be used to record keystrokes and
thus capture sensitive information such as user names, passwords, and Social Security
numbers).
B. Microsoft’s Software and Intellectual Property
13. Microsoft develops, advertises, markets, distributes, and licenses a number of
computer software programs. Microsoft’s software programs are recorded on distributable
media, such as DVDs, or are made available for download through various authorized
distribution channels.
14. Windows 7: Microsoft developed—and advertises, markets, distributes, and
licenses—a computer operating system called Microsoft Windows 7 (“Windows 7”).
Microsoft holds a valid copyright in Windows 7 that was duly and properly registered with the
United States Copyright Office. A true and correct copy of the Registration Certificate for
Microsoft Windows 7, bearing the number TX 7-009-361, is attached as Exhibit 1.
15. Microsoft has also duly and properly registered a number of trademarks and
service marks in the United States Patent and Trademark Office on the Principal Register,
including without limitation:
(a) “MICROSOFT,” Trademark and Service Mark Registration No.
1,200,236, for computer programs and computer programming services;
(b) WINDOWS, Trademark Registration No. 1,872,264 for computer
programs and manuals sold as a unit;
(c) “FLAG DESIGN TWO (B/W),” Trademark Registration No. 2,738,877,
for computer software;
(d) “FLAG DESIGN TWO (COLOR),” Trademark Registration No.
2,744,843, for computer software;
True and correct copies of the Trademark Registrations for (a) through (d) above are attached
as Exhibits 2 through 5, respectively.
C. Microsoft’s Distribution Channels for Software
16. Microsoft distributes its software through a number of distribution channels,
including the Original Equipment Manufacturer (OEM) channel.
17. The Original Equipment Manufacturer (“OEM”) distribution channel is one
through which Microsoft software is distributed to computer and device manufacturers called
OEMs. OEMs customarily pre-install software on the devices they build including, most
commonly, the Microsoft Windows operating system.
18. The OEM distribution channel involves sub-channels that supply Microsoft
software to different categories of OEMs. Two of these sub-channels are relevant for purposes
of this complaint: the Commercial OEM channel and the Direct OEM channel.
19. Through the Commercial OEM (“COEM”) channel, Microsoft and a large
number of authorized distributors supply what is called “system builder” software to small and
medium-sized OEMs for pre-installation on devices. As described in detail below, this
software is required to be individually activated on each device.
20. Through the Direct OEM (“DOEM”) channel, Microsoft directly provides
software to large computer manufacturers, such as Dell and Lenovo, for pre-installation on
devices. The DOEMs acquire some components associated with the Microsoft software from
Microsoft Authorized Replicators (“ARs”).
D. Product Activation
21. Like many other software developers, Microsoft has implemented a wide range
of initiatives to protect its customers and combat theft of its intellectual property. One
important tool in Microsoft’s anti-piracy protection arsenal is its product activation system,
which involves the activation of software through product keys.
22. A Microsoft product key is a 25-character alphanumeric string generated by
Microsoft and provided to customers and OEMs. Generally, when customers or OEMs install
Microsoft software on a device, they must enter the product key. Then, as part of the activation
process, customers and/or OEMs voluntarily contact Microsoft’s activation servers over the
Case 2:15-cv-00663 Document 1 Filed 04/28/15 Page 5 of 13
Internet and transmit their product keys and other technical information about their device to
the servers. Most or all of the activations involved in this matter contacted servers that are
physically located in Tukwila, Washington.
23. The activation process is analogous to the activation of credit cards or mobile
phones with a code provided by the financial institution or the mobile carrier. Because
Microsoft’s copyrighted software is capable of being installed on an unlimited number of
computers, Microsoft relies on the product activation process to detect piracy and protect
consumers from the risks of non-genuine software.
24. In the OEM channel, each copy of genuine Microsoft Windows software that is
purchased is distributed with a product key unique to that copy of the software—thus, if a
customer purchases ten computers with Windows 7 installed, the customer is supplied with ten
unique product keys.
25. Windows product activation works differently in the COEM and DOEM
channels. COEMs are required to use individual product keys to install and activate software
on the computer system. DOEMs, on the other hand, use a master key to install Windows 7
software, and provide each customer with a “recovery” product key to use if the Windows 7
software ever needs to be reinstalled on that computer.
E. Microsoft’s Use of Cyberforensics to Combat Piracy
26. To support Microsoft’s global efforts to combat the piracy of its software,
Microsoft recently launched the Microsoft Cybercrime Center. See Microsoft Cybercrime
Center, http://www.microsoft.com/government/ww/safety-defense/initiatives/Pages/
cybercrime-center.aspx. Among other tools, the Cybercrime Center relies on investigative
methods that leverage state-of-the-art technology to detect software piracy. Microsoft refers to
these methods as “cyberforensics.”
27. As part of its cyberforensic methods, Microsoft analyzes product key activation
data voluntarily provided by users when they activate Microsoft software, including the IP
address from which a given product key is activated. An IP address is a numerical identifier
used to uniquely identify an internet-capable device when the device is connected to the
Internet. An IP address is ordinarily assigned to an internet user (whether an individual or an
entity) by the user’s Internet Service Provider (“ISP”).
28. Entities charged with managing and administering internet numbering resources,
including IP addresses, publish information about IP address assignment and registration in
publicly searchable databases. Akin to an IP address “phone book,” these databases can be
used to associate each IP address with the individual or entity assigned to use that address. In
some cases, the listed individual or entity is actually using the IP address; in other cases, the
listed individual or entity is an ISP who has assigned the IP address to one of its customers.
Thus, in some instances, the identity of the individual or entity associated with a particular IP
address is publicly available; in other instances, the identity of the individual or entity can only
be obtained from the ISP assigned to that IP address.
29. Cyberforensics allows Microsoft to analyze billions of activations of Microsoft
software and identify activation patterns and characteristics that make it more likely than not
that the IP address associated with the activations is an address through which pirated software
is being activated. These characteristics include, but are not limited to, software activations
with:
a. Product keys known to have been stolen from Microsoft’s supply chain
or which have never been issued by Microsoft with a valid license;
b. DOEM product keys impermissibly used in the COEM and/or
refurbisher channel; or
c. Any type of product key used more times than is authorized by the
applicable software license.
F. Defendants’ Infringing Conduct
30. Microsoft’s cyberforensics have identified hundreds of product key activations
originating from IP address 74.111.202.30 (“the IP address”), which is presently assigned to
Verizon Online LLC, and which, on information and belief, is being used by the Defendants in
furtherance of the unlawful conduct alleged herein. These activations have characteristics that
on information and belief, establish that Defendants are using the IP address to activate pirated
software.
31. On information and belief, Defendants have activated numerous copies of
Windows 7 with product keys that have the following characteristics:
a. Product keys known to have been stolen from Microsoft’s supply chain
or which have never been issued by Microsoft with a valid license;
b. DOEM product keys impermissibly used in the COEM and/or
refurbisher channel; and
c. Product keys of various types used more times than is authorized by the
applicable software license.
32. On information and belief, each of these activations constitutes the unauthorized
copying, distribution, and use of Microsoft software, in violation of Microsoft’s software
licenses and its intellectual property rights.
33. On information and belief, Defendants have committed and continue to commit
acts of copyright and trademark infringement against Microsoft. On information and belief, at
a minimum, Defendants acted with willful blindness to, or in reckless disregard of, Microsoft’s
registered copyrights, trademarks, and service mark.
34. On information and belief, Microsoft has been harmed by Defendants’
advertising activities, including the unauthorized use of Microsoft’s marks to describe the items
that Defendants are distributing.
V. CAUSES OF ACTION
First Claim
Copyright Infringement – 17 U.S.C. § 501 et seq.
35. Microsoft is the sole owner of Microsoft Windows 7 and of the corresponding
copyright and Certificate of Registration with the registration numbers listed above.
36. Defendants have infringed Microsoft’s copyrights by reproducing and/or
distributing Microsoft software in the United States of America without approval or
authorization from Microsoft.
37. At a minimum, Defendants acted with willful blindness to, or in reckless
disregard of, Microsoft’s registered copyrights.
38. As a result of Defendants’ wrongful conduct, Microsoft is entitled to recover its
actual damages and Defendants’ profits attributable to the infringement. Alternatively,
Microsoft is entitled to statutory damages under 17 U.S.C. § 504(c).
39. The award of statutory damages should be enhanced in accordance with 17
U.S.C. § 504(c)(2).
40. Microsoft is further entitled to injunctive relief and an order impounding all
infringing materials. Microsoft has no adequate remedy at law for Defendants’ wrongful
conduct because, among other things: (a) Microsoft’s copyrights are unique and valuable
property which have no readily determinable market value; (b) Defendants’ infringement harms
Microsoft such that Microsoft could not be made whole by any monetary award; and
(c) Defendants’ wrongful conduct, and the resulting damage to Microsoft, is continuing.
Second Claim
Trademark Infringement – 15 U.S.C. § 1114
41. Defendants’ activities constitute infringement of Microsoft’s federally registered
trademarks and service mark with the registration numbers listed above
42. Microsoft advertises, markets, distributes, and licenses its software and related
components under the trademarks and service mark described above and uses these trademarks
and service mark to distinguish Microsoft’s products from the software and related items of
others in the same or related fields.
43. Because of Microsoft’s long, continuous, and exclusive use of these trademarks
and service mark, they have come to mean, and are understood by customers, end users, and the
public to signify, software programs and related components or services of Microsoft.
44. The infringing materials that Defendants have and are continuing to advertise,
market, install, offer, and distribute are likely to cause confusion, mistake, or deception as to
their source, origin, or authenticity.
45. Further, Defendants’ activities are likely to lead the public to conclude,
incorrectly, that the infringing materials that Defendants are advertising, marketing, installing,
offering, and/or distributing originate with or are authorized by Microsoft, thereby harming
Microsoft, its licensees, and the public.
46. At a minimum, Defendants acted with willful blindness to, or in reckless
disregard of, Microsoft’s registered marks.
47. As a result of Defendants’ wrongful conduct, Microsoft is entitled to recover its
actual damages, Defendants’ profits attributable to the infringement, and treble damages and
attorney fees pursuant to 15 U.S.C. § 1117(a) and (b). Alternatively, Microsoft is entitled to
statutory damages under 15 U.S.C. § 1117(c).
48. Microsoft is further entitled to injunctive relief and an order compelling the
impounding of all infringing materials. Microsoft has no adequate remedy at law for
Defendants’ wrongful conduct because, among other things: (a) Microsoft’s trademarks and
service mark are unique and valuable property that have no readily determinable market value;
(b) Defendants’ infringement constitutes harm to Microsoft’s reputation and goodwill such that
Microsoft could not be made whole by any monetary award; (c) if Defendants’ wrongful
conduct is allowed to continue, the public is likely to become further confused, mistaken, or
deceived as to the source, origin or authenticity of the infringing materials; and (d) Defendants’
wrongful conduct, and the resulting harm to Microsoft, is continuing.
Third Claim
Imposition of a Constructive Trust
49. Defendants’ conduct constitutes deceptive and wrongful conduct in the nature of
passing off the infringing materials as genuine Microsoft software or related components
approved or authorized by Microsoft.
50. By virtue of Defendants’ wrongful conduct, Defendants have illegally received
money and profits that rightfully belong to Microsoft.
51. On information and belief, Defendants hold the illegally received money and
profits in the form of bank accounts, real property, or personal property that can be located and
traced. All such money and profits, in whatever form, are held by Defendants as a constructive
trustee for Microsoft.
Fourth Claim
Accounting
52. Microsoft is entitled, pursuant to 17 U.S.C. § 504 and 15 U.S.C. § 1117, to
recover any and all profits of Defendants that are attributable to the acts of infringement.
53. Microsoft is entitled, pursuant to 17 U.S.C. § 504 and 15 U.S.C. § 1117, to
actual damages or statutory damages sustained by virtue of Defendants’ acts of infringement.
54. The amount of money due from Defendants to Microsoft is unknown to
Microsoft and cannot be ascertained without a detailed accounting by Defendants of the precise
number of units of infringing material advertised, marketed, installed, offered or distributed by
Defendants.
VI. PRAYER FOR RELIEF
WHEREFORE, Microsoft respectfully prays for the following relief:
A. That the Court enter judgment in Microsoft’s favor on all claims;
B. That the Court restrain and enjoin Defendants, their directors, principals,
officers, agents, representatives, employees, attorneys, successors and assigns, and all others in
active concert or participation with it, from:
(i) copying or making any other infringing use or infringing distribution of
Microsoft’s software and other intellectual property including but not limited to the software
identified by the Trademark, Service Mark, and Copyright Registration Numbers listed above;
(ii) manufacturing, assembling, producing, distributing, offering for
distribution, circulating, selling, offering for sale, advertising, importing, promoting, or
displaying any Microsoft software or other intellectual property bearing any simulation,
reproduction, counterfeit, copy, or colorable imitation of any of Microsoft’s registered
trademarks, service mark, or copyrights, including, but not limited to, the Trademark, Service
Mark, and Copyright Registration Numbers listed above;
(iii) using any simulation, reproduction, counterfeit, copy, or colorable
imitation of Microsoft’s registered trademarks, service mark, or copyright including, but not
limited to the Trademark, Service Mark, and Copyright Registration Numbers listed above, in
connection with the manufacture, assembly, production, distribution, offering for distribution,
circulation, sale, offering for sale, import, advertisement, promotion, or display of any
software, component, and/or other item not authorized or licensed by Microsoft;
(iv) engaging in any other activity constituting an infringement of any of
Microsoft’s trademarks, service mark and/or copyrights, or of Microsoft’s rights in, or right to
use or to exploit, these trademarks, service mark, and/or copyrights; and
(v) assisting, aiding, or abetting any other person or business entity in
engaging in or performing any of the activities listed above;
C. That the Court enter an order pursuant to 15 U.S.C. § 1116(a)(d)(1)(A) and 17
U.S.C. § 503 impounding all counterfeit and infringing copies of purported Microsoft software
and/or materials bearing any of Microsoft’s trademarks or service mark, and any related item,
including business records, that are in Defendants’ possession or under their control;
D. That the Court enter an order declaring that Defendants hold in trust, as
constructive trustees for the benefit of Microsoft, the illegal profits obtained from their
distribution of counterfeit and infringing copies of Microsoft’s software, and requiring
Defendants to provide Microsoft a full and complete accounting of all amounts due and owing
to Microsoft as a result of Defendants’ unlawful activities;
E. That Defendants be required to pay all general, special, actual, and statutory
damages which Microsoft has sustained, or will sustain, as a consequence of Defendants’
unlawful acts, and that such damages be enhanced, doubled, or trebled as provided for by 17
U.S.C. § 504(c) and 15 U.S.C. § 1117(b);
F. That Defendants be required to pay to Microsoft both the costs of this action and
the reasonable attorneys’ fees incurred by Microsoft in prosecuting this action, as provided for
by 15 U.S.C. § 1117 and 17 U.S.C. § 505; and
G. That the Court grant Microsoft such other, further, and additional relief as the
Court deems just and equitable.
DATED this 28th day of April, 2015.
DAVIS WRIGHT TREMAINE LLP
Attorneys for Plaintiff Microsoft Corp.
By s/ James Harlan Corning
James Harlan Corning, WSBA # 45177
1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045
Tel: (206) 622-3150
Fax: (206) 757-7700
Email: [email protected]