Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 1 of 26

United States District Court For The District Of

(Missoula)
Todd Damase Ouellette

Plaintiff
Complaint For Declaratory
V. And Injunctive Relief
And Damages

#:Cf-1D""~ .. In.J)V~-
Viacom International Inc., Comedy Partners,

MTV Networks, BayTSP, Audible Magic, Myspace Inc.,

Case
News Corporation, Youtube, LLC, and Google Inc;.
~!

1. Comes now that Plaintiff Todd Damase Ouellette is forced to file this Pro Se

complaint under statute 28 U.S.C. § 1654, againSt Defendants Viacom, Comedy

Partners, MTVN, BayTSP, Audible Magic, NBC Universal, Myspace, NewsCoorp,

Google and Youtube. This is a civil action seekin~ injunctive relief, declaratory relief and

damages for conspiracy to operate an illegal scanning softwares in a deliberate effort to

commit MISREPRESENTATION of copyright infrirgement under the Digital Millennium

Copyright Act ("DMCA") 17 U.S.C. 512 (F), and/or block videos without a valid copyright
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claim; refusal to process "substantially" valid and icompletely valid counter notices;

refusal to retract a fraudulent copyright claim; anq use of an inaccurate, confusing and

unconscionable contracts ("TOS" - see Exhibit #1 Youtube TOS and Exhibit #18

Myspace TOUA) which were subsequently violated by Defendants. Also, Defendants

violated Plaintiff's rights as a disabled American ~nder the American's With Disabilities

Act by using a font style in their contracts that is difficult for many Dyslexics to read and

refused to make a reasonable accommodation for Plaintiff's Dyslexia. Defendants also

exacerbated Plaintiff's Dyslexia and Chronic Pain! Syndrome by repeatedly threatening

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(Exhibit #2 Threatening Email) Plaintiff for no legitimate reason. (see 42 USC - 12181 ­
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SEC. 302. PROHIBITION OF DISCRIMINATION IBY PUBLIC ACCOMMODATIONS).

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2. This case arises out of Defendant's conspirac~ to concoct baseless assertions that

Plaintiff's videos posted to the GooglelYoutube a~ounts "powmadeak47",

"somerealnews", "judgetvshow" and "EFFlsAFral.)d" infringe copyrights owned,

controlled or 'flagged' by the Defendants in violation of the Digital Millennium Copyright

Act's prohibition against MISREPRESENTATION!. These Defendants have all

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repeatedly verified that these assertions are fals~, but have nonetheless resulted in
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temporary and/or permanent removal of legal Fair Use videos from the four

GooglelYoutube accounts listed above; and threats to remove all videos from these

accounts; and police harassment against the Plaihtiff and his 70 yr. old mother who

suffers from high blood pressure and strokes. Thi~ has clearly led to infliction severe

emotional distress stress upon the the Plaintiff. Dl.fendant's threats to Plaintiff have

repeatedly exacerbated his Dyslexia and ChroniO Pain Syndrome disabilities.

Notice Of Probable JSmendments

3. Due to the secretive policies of Defendants, Pltintiff wishes to infonn this court that

he will almost certainly need to amend this complaint, as details and facts emerge

during the process of this suit.

PARTY (PlaiJtiffl

4. Plaintiff Todd Damase Ouellette is an indepen~ent political activist, investigative

reporter and videographer, who resides primarily lin Missoula, MT but travels extensively

in the Western United States to obtain video footage used in his various productions.

Plaintiff lives in, and conducts most of his and prlduction, including most of the videos
 Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 3 of 26

in question, from various locations in Missoula MT. Plaintiff is routinely subjected to

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various levels of harassment due to the unpopuh;lrity of his political views. (Exhibit #3
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Party Plaintiff and Exhibit #4 Timeline - Details ofl video production and harassment

history.)
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Parties - Defendants Viacom, MTV N,tworks & Comedy Partners

5. Defendant Viacom International Inc. rViacom"~, is a Delaware corporation with its

principal place of business in New York, New Yolfl<.

Defendant Comedy Partners, an affiliate of Viacom, is a general partnership formed in

New York with its principal place of business in New York, New York. Defendant MTV

Networks apparently produces The Daily Show With John Stewart and The Colbert

Report. It was listed as a party to at least one fraYdulent copyright claim made against
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Plaintiffs video posted to Youtube. (see Exhibit #S BayTSP Copyright Claim)

6. The shows distributed through their licensed diStribution networks include "The Daily

Show with Jon Stewart" and "The Colbert Report!" According to Viacom's lawsuit
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against Youtube (Case 1:07-cv-02103-LLS), Def$ndant Viacom International, Inc.

rViacom") is the corporate parent of Comedy Partners, which produces "The Colbert

Report" and "The Daily Show· and owns the Comedy Central cable network. Plaintiff is

informed and believes, and herein alleges, that V!acom owns or controls the copyrights

for "The Colbert Report" and "The Daily Show.·

7. Via com also operates a website http://www.th1dailYShow.com and

www.thecolbertreport.comthatiseasilyaccessibl~byanyresidentofthisdistrict.This
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website allows Viacom to derive revenue by displbying advertisements for other entities

and also via the sale of merchandise (books, shirts etc.),. This website also allows
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Missoula residents to set up a user account that allows residents of this district to

upload photos and videos. This user account req~ires a contract (TOS). Defendant

Viacom is internationally famous for it's abuse of ~he DMCA take-down process (Exhibit

#8 Yahoo Search for "Viacom Take- Down, also see Exhibit Addresses).

Party -!)efendant BayTSP

8. Plaintive has information and reason to believe the following: Defendant BayTSP is a

privately held company based in Los Gatos, CalifOrnia, that searches the internet for

copyright violations. It is contracted by Defendant Viacom (and probably NBC Universal)

to scour the internet for copyrighted content produced by Viacom that is illegally

uploaded without Viacom's permission ( see Exhibit "BayTsp Copyright Claim" - sent to

me by Youtube's copyright team after I complainE!Cl about pe~ury) . It is very secretive.

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but must use loeallnfrastructure to provided it's service. This infrastructure includes

cable and fiber-optic lines, satellites and cellular ~ystems. Defendant BayTSP operates

a website (www.baytsp.com}which solicits busin~ss from copyright owners and is

available to any resident of this district. BayTSP makes false claims that it's system

protects "fair use" videos. A complaint against BAYTSP's fraudulent copyright claims

can be found at http://heliologue.coml2007/02lpage/3. (also see Exhibit #9 BayTSP

Copyright Claim).

Party - Defendant Audible Magic Corporation

9. Plaintive has information and reason to believe the following: Defendant Audible

Magic is a corporation based in Los Gatos, California, that searches the internet for
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copyright violations. It is contracted by Defendanb; Viacom and NBC Universal to scour
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the internet for copyrighted content produced by '(iacom and NBC Universal that is
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 Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 5 of 26

illegally uploaded without permission (see Exhibi~ #22 Myspace Admission - email
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detailing "filter block"). Defendant Audible Magic must use local infrastructure to

provided it's service. This infrastructure includes table and fiber-optic lines, satellites

and cellular systems. Defendant operates a webSite (http://www.audiblemagic.com)

which solicits business from copyright owners and is available to any resident of this

district. Defendant was involved in writing Defenclant Youtube's first content scanning

software.

Party - Defendant tMyspace

10. Plaintiff has reason to believe and allege the following; Defendant Myspace is a
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social networking website headquartered in Beverly Hills, CA. where it shares an office

building with its immediate owner, News Corp. Dipital Media, owned by News

Corporation. Myspace became the most popular !;ocial networking site in the United

States in June 2006, but was overtaken internationally by its main competitor,

Facebook, in April 2008. MySpace's monthly U.SI unique visitors at 43.2 million. The

100 millionth account was created on August 9, .zb06, in the Netherlands. "Members"

get their 'accounts' by agreeing to a Terms Of US!3 Agreement (see Exhibit #18

Myspace TOUA). This contract contains block letter font. Numerous Missoulians have

signed this contract and maintain accounts thru Which they upload audio, video and/or

photographs to their account. This social networking service requires use of local

infrastructure including cellular transmission, cable, satellite, and computer systems.

Myspace derives financial gain from posting advartisements that are seen daily my

many Missoulians. Defendant Myspace also overjs Missoulians an advertisement

service to promote local products.

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(www.foxaudiencenetwork.com/aboutus_contact~s.php). While Missoulians can upload

videos to Myspace.com accounts, Myspace.com 'S not considered to be a legitimate

alternative to Youtube.com video uploading, due to the lack of traffic (views) on the

Myspace videos.

NewsCorp/Myspace also operates a Chinese language version called

www.myspace.cn.This site uses "filters" to cenSOr topics such as religion and politics

and prevents the posting of content about Taiwan independence, the Dalai Lama, Falun

Gong, and other "inappropriate topics· has been added. Members are also given the

ability to report the "misconduct" of other members for alleged offenses including

"endangering national security, leaking state sec~ts, subverting the government,

undermining national unity, and spreading rumorS or disturbing the social order."

Party - Defendant NBC Universal

11. Plaintiff has reason to believe and allege the following; Defendant NBC Universal is

80% owned by General Electric and 20% owned by Vivendi. Universal is the corporate

parent of NBC Universal and NBC UNIVERSAL TELEVISION GROUP, which produces

Saturday Night Live. Plaintiff is informed and beli,ves, and thereon alleges, that NBC

Universal owns or controls the copyrights to Saturday Night Live, and Saturday Night

Live's "Weekend Update." "Saturday Night Live," Which premiered Oct. 11, 1975, is

broadcast live from NBC's famed Studio 8H in New York City's Rockefeller Center. The

program is a production of Broadway Video in as$ociation with SNL Studios. Lome

Michaels is the executive producer.

12. "http://www.nbcuni.comlAboul_NBC_ univers~IICompany-Overview· states "The

NBC Television Network broadcasts approximately 5,000 hours of TV programming
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each year, transmitting to more than 200 affiliatecll stations across the United States."

One of the affiliates is KECI in Missoula, MT. Uni~ersal derives advertising revenue by

using the local cable and satellite systems to airel advertisements seen by residents of

this judicial district. Universal also operates a we~site

http://www.nbc.com/saturday-night-live/that is e~sily accessible by any resident of this

district. This website derives advertising revenue by displaying advertisements for it's

sponsors and via direct merchandise sales. This website also offers a

"computer-to-computer voice-calling application" and and a user account that allows

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residents of this district to upload photos and videos. Both of these applications require

users to agree to a TOS contract. This website eJ!:tols viewers to "Shop the NBC Store

for DVDs, collectibles, and more from your favori1je NBC shows!"
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Party· Defendant GoqgleNoutube

13. Defendant YouTube, LLC is a Delaware limited liability company with its principal

place of business in San Bruno, California. On information and belief, YouTube, LLC is

the successor of YouTube, Inc. Youtube's "Copyright Team" lists it's address as

YouTube, Inc. - 901 Cherry Ave. - Second Floor ~ San Bruno, CA 94066. Defendant

YouTube, Inc. is the world's preeminent video sharing service. Youtube.com is

indispensable to any person trying to publicize pdlitical issues. Users include President

Barack Obama, al-Qaeda terrorists, and freedomlfighters opposed to oppressive

regimes in China, Tajikistan, Myanmar and numerous other countries and regions.

Other services like Myspace, Vimeo and FaceboC)k, do not even begin to compare to

Youtube in terms of viewership and ease of use. i

14. YouTube is a wholly owned and controlled subsidiary of Defendant Google Inc., a
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Delaware corporation with its principal offices of ijusiness in Mountain View, Califomia,

and the State of New York. Youtube also conducts business in this District. Pursuant to
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a transaction that was publicly announced on Ocllober 9, 2006, and closed on

November 13, 2006, Google acquired YouTube for $1.65 billion. Therefore YouTube,

Inc. and YouTube, LLC are referred to collectively herein as

"Google/YouTube." Google/Youtube requires aliinew account submissions to also set

up a Google account. The Google account pass",,!ord is used as the password for the

Youtube account. Google/Youtube offers adverti1ing programs to "Youtubers" (IE

people who open Youtube accounts and post vidElOs on their accounts); see

http://www.youtube.comltladvertising. These programs are available to any Missoulian

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wI access to the internet. These programs allow rjtlissoula-based Youtubers to pay

Google/Youtube to advertise their websites and t)usinesses, or derive revenue from

Google/Youtube in return for allowing Google/Yo~tube ads to be posted along wI the

videos that the Youtubers submit; see http://wwwiyoutube.com/partners. In addition to

these local business ties, Google also developed Ithe software used on the "DROID"
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smart phone that is sold by several Missoula-bas~d businesses. Youtube itself operates

a similar program that allows Missoulians to place Google/Youtube ads on videos that

they upload to their Youtube.com account.

15. Google/Youtube is a multi-billion dollar corpor1ption which requires account holders

to acquiesce to an confusing TOS, in order to upload videos to the internet. These TOS,

have the affect of voiding various federal statuteslincluding the DMCA, American's with
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Disabilities Act. and other state and federal anti-discrimination laws. These TOS also
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give Youtube.com the power to destroy all of the youtuber's videos for no reason, and
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Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 9 of 26

with no right to appeal the destruction of the You1uber's property.

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JURISDICTION A~ D VENUE
16. This Court has jurisdiction over this claim pursuant to the Copyright Act (17 U.S.C.

§§ 101 et seq.), 28 U.S.C. §§ 1331 and 1338, and the Declaratory Judgment Act (28

U.S.C. § 2291). Additionally, Defendant GoogleNoutube has voided the TOS contract,

by willfully violating "1. Your Acceptance - B. Nolhing in these Terms of Service shall

be deemed to confer any third-party rights or ben~fits", thereby invalidating any

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agreement allegedly made by Plaintiff with regarcjs to venue and jurisdiction (Exhibit #1

TOS) . And that NewsCorp/Myspace has voided it's TOUA by allowing Audible Magic to

inflict a"filter block" that is not specifically mentio~ed in it's TOUA.

17. Plaintiff is informed, believes and hereby al11es that Defendants have sufficient

contacts with this district generally and, in particular, with the events herein alleged, that

it is subject to the exercise of jurisdiction of this ~urt and that venue is proper in this

judicial district pursuant to 28 U.S.C. § 1391. Plaihtiff has obtained, edited and uploaded
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most of the videos in question from Missoula Montana.

18. Plaintiff is informed, believes and hereby all1es that, based on the places of

businesses of the Plaintiffs and Defendants, spe~ific factual allegations herein and/or on

the national and global reach of Defendants, a sUbstantial part of the events giving rise

to the claims herein alleged occurred in this district and that agents (law firms including

Whitney & Dorsey LLP) of Defendants may be found in this district. Plaintiff believes

Defendants have the financial resources to hire r4lpresentation in this district and that

they obtain financial gain from airing their programs and or videos and the sale of

merchandise in this district on a daily basis.

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INTRADISTRICT ASjSIGNMENT

19.Plaintiff is informed, believes and herein altegts that a substantial part of the events
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that give rise to the claims herein occurred in thelCounty of Missoula, Montana and that

all Defendants rely on local infrastructure (cable, pellular, satellite, fibre optic, affiliates,

etc.) to procreate their bUsiness interests. And, Plaintiff has direct ties to this district,

and it is in the interest of justice for this suit to be heard in this jurisdiction.

FACTUAL ALLE4ATIONS

20. Plaintiff has information and belief that Defendant Youtube LLC. requires users to

agree to a Terms Of Service contract. This TOS included significant errors, and as
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written would allow Youtube to engage in arbitrarY enforcement of it's rules and/or
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discriminatory acts in violation of numerous state and federals laws (including the

Americans with Disabilities Act). This TOS contai[1s 'bold-face type' that is difficult for

many Dyslexics to read. TOS also contains a prOVision that discriminates against

Americans with reading disabilities. Defendant Yqutube also violated this TOS by
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allowing "3rd Party· use of it's scanning software to initiate false copyright claims

against Plaintiff, resulting in blocking of his fair u~ videos, "strikes" against his

accounts and termination of a Youtube account. (~ee Exhibit #1 Youtube TOS and

Exhibit #4 Timeline)

21. Plaintiff has information and belief that Defendants BayTSP, Youtube, and Audible

Magic have developed various types of 'scanning software' to scan the intemet for

copyright audio and video files, and trigger the coPyright claim process. These software
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have no regard for legal, fair use videos and routihely lead to perjury when false

copyright claims are initiated against fair use videbs uploaded by Plaintiff and other
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"Youtubers" (See Exhibit #13 Oct. 10.2010 Youtube flag and UMG Recordings, 665 F.

Supp. 2d at 1116-18 - "automated Audible Magiclfilter "does not meet the standard of
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reliability and verifiability required by the Ninth Circuit in order to justify terminating a

user's account.")

23. Plaintiff has information and belief that Defen!Jant's know that their scanning

software initiate false copyright claims against Plaintiff,

, and made no effort to correct the

problem. Plaintiff has information and belief that lDefendant's Viacom and NBC

Universal maliciously and intentionally did commit perjury by making false copyright

claims against Plaintiffs videos. And, that these acts of perjury were initiated by

Defendant's scanning software. Viacom's perjury!was committed by Stanley

Pierre-Lewis and Mark Ishikawa (see Exhibit #7 Stan Lewis Pe~ury - a Viacom email

admitting Stan Lewis' role and Exhibit #9 BayTSR Copyright Claim - email sent by

Youtube to Plaintiff verifying that Mark Ishikawa made a false copyright claim).

24. Plaintiff has information and belief that Defendant Viacom did violate terms of it's

settlement wI EFF.org regarding establishment of a copyright "help" site sight to quickly

resolve fraudulent copyright claims initiated against fair use videos by Viacom. Plaintiff

has information and belief that Defendant Youtube's Copyright Team did arbitrarily

enforce it's TOS rules regarding submission of copyright counter notices to the

detriment of Plaintiff, thus violating DMCA requirements that counter notices be

processed in order for Youtube to claim "safe harbor" status. Plaintiff contents that

attorneys for Youtube did commit perjury during t~e final stages of it's successful

defense against the Viacom lawsuit. Youtube's c6pyright team repeatedly refused to

process "substantially" complete and totally complete counter notices submitted by

 Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 12 of 26

Plaintiff. (see Exhibit #5 False statement by Yolltube attomeys and Exhibit #7 Safe

Harbor Perjury).

25. Plaintiff has information and belief that Defenjjant Youtube's Copyright Team did

maliciously use his obvious reading disability as ,n excuse to refuse to process a

"substantially" complete DMCA count notice (seei Exhibits #10 'Newt' Video Ordeal, #11

Stewart Disses Israel - A Little {flag notice}, #121 Dyslexia Mess, #13 and Exhibits #14,

#15, #16, #17 regarding flag, take-down and refusal to process counter notice for 'Salt'

video) and deliberately and maliciously used fraudulent copyright claims from

Defendants Viacom, NBC Universal and BayTS~ to threaten Plaintiff and inflict severe

emotional distress upon him (see Exhibit #2 Thret3tening Email) and harassment of his

mother by law enforcement officers based on fal~e claims by Fred Von Lohman (See

Exhibit #23 Helu Admits To Harassing My Mothe~).

26. Plaintiff has information and belief that Defen(lants Viacom, NBC Universal,

BayTSP, Audible Magic, NewsCorp/Myspace and Youtube threatened Plaintiff, thus

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exacerbating his medical disability which induced[ severe physical pain upon him and

forced him under duress to agree to Youtube's T¢>S for all accounts (other than

"powmadeak47") and the myspace.com/powmad~ak47 account. Defendant Viacom

also repeatedly harassed Plaintiff by issuing multiple, fraudulent copyright claims

against a single video in an effort to induce Youtube to permanently block it and issue

Plaintiff "strikes" against his account (see Exhibits #6 Safe Harbor Perjury, #10 'Newt'

Video Ordeal, #24 Another Double Block)

27. Plaintiff has information and belief that Defen~ant NewsCorp/Myspace forces

members to sign a TOUA contract and that this TOUA is poorly written, confusing, uses
 Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 13 of 26

block lettering that is difficult for Plaintiff to read, and has no provisions relating to Fair

Use rights and counter notice procedures. Plainti~ also alleges that Defendant
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Newscorp/Myspace did violate it's own TOUA bylblocking his videos without the proper
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notice from Audible Magic and NBC Universal asl required by the TOUA. (Exhibit #18

Myspace TOUA specifically "9. Protecting Copyrights and Other Intellectual Property"

and Exhibits #19,20,21, and 22 regarding "filter blocks"). Plaintiff also contends that

this action was a violation of the DMCA requirements for copyright claims, take-downs

and blocks and Limitations Of Liability.

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Count I· Youtube Violation Of Uncons,ionable Contract Of Adhesion

28. Plaintiff incorporates by reference of the aboJe paragraphs and exhibits, herein.

29. Defendant Google/Youtube uses a poorly written "Terms Of Service" contract. This

TOS is confusing, and also contradicts YOutube'~ copyright "Help" instructions and
DMCA's counter notice requirements by falsely cl~iming an issuer of a counter notice

must contain "all the following information" when the DMCA only requires the counter

notice to contain "substantially all" of the information. The Youtube.com TOS also

falsely claims that the counter notice must contai~ "a statement that you consent to the

jurisdiction of the federal court in San Francisco, balifornia." In fact, the DMCA requires

that the counter notice issuer "consents to the jurisdiction of Federal District Court for

the judicial district in which the address is located[" ("Address" refers to the counter

notice issuer's address.)

Youtube's TOS also falsely claims "If a counter-n~tice is received by the Copyright

Agent. YouTube may send a copy of the counter-hotice to the original complaining party
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informing that person that it may replace the remOved Content or cease disabling it in
 Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 14 of 26

10 business days. Unless the copyright owner files an action seeking a court order

against the Content provider, member or user, tha removed Content may be replaced,

or access to it restored, in 10 to 14 business daY$ or more after receipt of the

counter-notice, at YouTube's sole discretion." Us~, of the term "may" is incorrect.

GoogleNoutube base it's ·safe harbor" claims in previous litigation on the claim that it

"does" process counter notices and re-post videOIS that it blocked due to copyright

claims.

30. Plaintiff has reason to believe that DefendantlGoogleNoutube also violated this

TOS by entering into a secret agreement to become "partners" and use the Content 10

System and/or other scanning softwares to flag videos.

, The TOS specifically states, "B.

Your Acceptance - 2. Nothing in these Terms of Service shall be deemed to confer any

third-party rights or benefits", thereby invalidating any agreement allegedly made by

Plaintiff with regards to venue and jurisdiction.

31. Upon information and belief, Defendant GoogleNouTube knew that it was legally

bound to process Plaintiffs counter notices and re-post his blocked videos as part of

their "safe-harbor" claim, regardless of any TOS Plaintiff allegedly "agreed" to, due to

it's claim as a "safe Harbor.·

32. As a direct and proximate result of Defendant!s actions. Plaintiff has been injured

substantially and irreparably. Such injuries includ~ but are not limited to harm to

Plaintiffs free speech rights under the First Amen~ ment. and the expenses associated
,
with responding to Viacom and Universal's compl~ints and vindicating his free speech

rights, financial loss from destruction of Plaintiffs Independent news service blog, and

severe emotional distress.

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33. Plaintiff requests that this court make a declaltatory judgement that Defendant
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Google/Youtube's TOS violates the ADA. is inco~sistent wI the DMCA, violates

Defendant's previous "Safe Harbor" contentions, ras in fact violated by Defendants:

and that Plaintiff agreed to the TOS for all his Yo~tube accounts (except

POWMadeak47) under duress and are therefore unconscionable contracts of adhesion

,

and void.

34. Plaintiff requests that this court issue a prelim,nary injunction barring Defendant

Google/YouTube from amending it's TOS; : and ~ar the use of block letter font: and
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barring it's use of Audible Magic, Content ID Systbms, BayTSP software, and

implementation of "filter blocks". Plaintiff request Ii permanent injunction requiring

Defendant Google/Youtube to amend it's TOS to give instructions on filing a DMCA

counter-notice consistent wI the DMCA instructio~ ("substantially"); offer users an

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audible version of the TOS, and cease use of AwjJible Magic, BayTSP and any other
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scanning software until Defendants can prove that they will not block Fair Use videos;

and rescind all "strikes" against Plaintiff (and any ,other Youtuber") that have previously

been based on scanning software.

Count II - Myspace Violation Of Unconspionable Contract Of Adhesion

35. Plaintiff incorporates by reference of the abot paragraphs and exhibits, herein.

36. Defendant Myspace and Audible Magic uses ~ poorly written 'Terms Of Use
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Agreement" contract. This TOUA is confusing, CQI1tradicts itself and has no instructions

for filing of DMCA counter-notices.

imoo,,;bIe 10, p~""" 10 read. PIa",ff only ' '1 ".

This TOUA is overly complicated, poorly written, ~nd uses block letter font that is nearly

TOUA ,nde, d,,,,,. of ..pealed

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threats initiated by false copyright claims from D1fendant NBC Universal and possible

Audible Magic. (Exhibit #18 Myspace TOUA) I

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Defendant Myspace implies in this TOUS that a ~opyright claim must be initiated via

DMCA rules to implement a take-down of a dispJted video. However, Myspace allows

"filer blocks" which are not even mentioned in to rOUA. These "filter blocks" violate the

DMCA requirements regarding "safe harbor" limit~tion of liability.

37. Upon information and belief, Defendants Mytpace and Audible Magic knew that

their "filter" was leading to blocks against Fair Us~ videos that Plaintiff had a legal right
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to post.

38. As a direct and proximate result of Defendan1!'s actions, Plaintiff has been injured

substantially and irreparably. Such injuries includ~ but are not limited to harm to
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Plaintiff's free speech rights under the First Ameridment, and the expenses associated

with responding to "filer blocks" and vindicating h~S free speech rights, financial loss
from destruction of Plaintiff's independent news service blog, and severe emotional

distress.

39. Plaintiff requests that this court make a decla~atory judgement that Defendant

NewsCorp/Myspacel TOUA is confusing and contradictory, violates the ADA, is

inconsistent wI the DMCA, and was in fact violateld by Defendant Myspace when it used

a "filter block", and is therefore an unconscionabl$ contract of adhesion and void.

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40. Plaintiff requests that this court issue a temporary restraining order barring

Defendant NewsCorp/Myspace from amending it'~ TOUA unless authorized by this

court; and barring it's use of Audible Magic software: and implementation of "filter

blocks": and bar the use of block letter font. Plain~iff request a permanent injunction
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requiring Defendant Myspace to amend it's TouA to give instructions on filing a DMCA

counter-notice: offer members an audible version of the TOUA, and cease use of
,
,

Audible Magic, BayTSP and any other scanning software until Defendants can prove

that they will not block Fair Use videos.

Count III - Illegal Scanning Software's Misrepresentation

41. Plaintiff incorporates by reference of the above paragraphs and exhibits, herein.

Upon Plaintiffs information and belief, Defendantls Viacom, Universal, Myspace and

YouTube knew or should have known that the Vi~eo Content ID System, Claim Your
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Content System, Audible Magic and BayTSP softiware, targets Fair Use videos and

results in Misrepresentation in violation of 17 U.SfC. § 512(f), "strikes", and blocking of

videos without going thru the proper DMCA copyright claims process, (see Exhibit

"Myspace Admission").

Defendants have refused Plaintiffs repeated req~ests to fix these ID Systems so they

do not result in Misrepresentation. Instead of fixil19 their flawed and illegal systems,

Defendants maliciously refused to restore Plaintift's Fair Use videos which had been

blocked for no legitimate reason.

42. As a direct and proximate result of Defendant's actions, Plaintiff has been injured

substantially and irreparably. Such injuries includ~ but are not limited to harm to
i

Plaintiffs free speech rights under the First Amerjdment, and the expenses associated

with responding to Viacom and Universal's complaints and vindicating their free speech

rights, financial loss from destruction of Plaintiffs lindependent news service blog and

public access TV program, and severe emotionalidistress .

43. Plaintiff requests that this court issue a tempqrary restraining order barring Viacom,
 Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 18 of 26

Universal, Myspace and YouTube using any for~ of scanning software until such time

that Defendants can prove these scanning softwares will not result in Misrepresentation

in violation of 17 U.S.C. § 512(f), "strikes", blocks or any other suppression offair use

videos works. Upon successful completion of this suit, Plaintiff requests a permanent

injunction to this affect.

COUNT IV: 17 U.S.C. 512(F)! Misrepresentation

44. Plaintiff repeats and incorporates herein by r~ference the allegations in the

preceding paragraphs and exhibits of this Compl$int.

Upon information and belief, a/l videos posted to Plaintiffs Youtube accounts

"powmadeak47", "somerealnews", "judgetvshow'1 and "EFFlsAFraud" and Plaintiffs

!
Myspace.comlpowmadeak47 account are self-evident fair use and therefore

non-infringing under 17 U.S.C. § 107.

45. Upon information and belief, Viacom, Universbl, Myspace and GooglelYouTube,

Audible Magic and BayTSP knew or should have known that Plaintiffs videos on the

above named Youtube and Myspace accounts dif not infringe any copyright on the

dates that they were flagged by scanning softwarr and/or the dates that Viacom and

Universal sent DMCA take-down notices to G009!elYOUTube.

Accordingly, Plaintiff requests a declaratory judg~ment that Defendants Mark Ishikawa,

Stan Louis and Universal did deliberately and maliciously violate 17 U.S.C. § 512(f) and

committed acts of perjury by knowingly materially misrepresenting that Plaintiffs videos

infringed copyrights and making false statements ito Judge Lewis Stanton (see Exhibits

# 5, Exhibit #fl, Exhibit #7 and Exhibit #9)

46. As a direct and proximate result of Defendantls actions, Plaintiff has been injured
 Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 19 of 26

substantially and irreparably. Such injuries includ~ but are not limited to harm to
Plaintiff's free speech rights under the First Ame1dment, and the expenses associated

with responding to Viacom and Universal's complaints and vindicating their free speech

rights, financial loss from destruction of Plaintiff'siindependent news service and music

blog, public access TV programs; and severe errbtional distress.

47. Plaintiff requests that this court issue a restrajning order barring "partners" Viacom,

Universal, Myspace and GoogleNouTube issuing any future take-down notices against

Plaintiff's videos and blocking Plaintiff videos based on Defendants baseless copyright

misrepresentations. Upon successful completion of this suit, Plaintiff requests a

permanent injunction to this affect.

48. Plaintiff requests a temporary injunction, barrrg Defendants from producing and/or
I

airing The Daily Show with John Stewart, The Co/bert Report and SNL Weekend
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Update.

Plaintiff requests revocation of Defendant Google¥Youtube's "Safe Harbor" status due to

it's perjured claims during the Viacom V. YoutubEj lawsuit. (See Exhibit #6 Safe Harbor
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Perjury - Excerpt from March 11, 2010 Youtube ct>urt filing in which GoogleNoutube

attorneys make false claims of DMCA compliance.)

COUNT V - REFUSAL TO PROCESS "SUBSTANTIALLY" COMPLETE DMCA

COUNTER NOl"ICES

49. Plaintiff incorporates by reference of the abo\h3 paragraphs and exhibits, herein.

Due to Plaintiff's financial situation and reading dibability, Plaintiff will never be able to
,

submit a perfect DMCA Counter Notice. Plaintiff ~oes not even own a phone and has no

fixed address. However, all counter notices were at least "substantially" complete.
 Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 20 of 26

GooglelYoutube's copyright team clearly had enough information from Plaintiff to submit

Plaintiff's DMCA counter notice to Defendant's Viacom and Universal.

50. However, Defendant GooglelYoutube clearly !used Plaintiffs disability, phone and

address issues as an excuse to refuse to process ·substantially" complete DMCA

counter notices. GooglelYoutube's copyright tea~ knowingly refused repeated requests

by Plaintiff to explain the reason refusing to process "substantially complete" DMCA

counter notices. On the few occasions when the wpyright team did offer an excuse,

they were vague and misleading excuses that produced great mental stress in the

Plaintiff. The 3 Counter Notices that have been refused by Google'Youtube's copyright

team are the same template that this copyright teem has accepted on numerous

previous occasions.

51. As a direct and proximate result of Defendantfs actions, Plaintiff has been injured

substantially and irreparably. Such injuries includ~ but are not limited to harm to

Plaintiffs free speech rights under the First Amendment, and the expenses associated

with responding to GooglelYoutube's copyright t~m and vindicating his free speech
i
rights, financial loss from destruction of Plaintiffs: independent news service blog, and

severe emotional distress.

52. Plaintiff requests a declaratory judgement from

, this court that under the
circumstances of repeated counter claims (most Gf which were totally complete)

Youtube's copyright team have enough informatidn to process Plaintiffs counter notices

that contained typos and omitted a phone number: and that Youtube Google should

have know that Plaintiff obviously have a readinIJ disability.

53. Plaintiff requests that this court issue a permanent injunction to the GooglelYoutube
 Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 21 of 26

copyright team requiring it to clearly, completely and immediately explain any reason for

refusing to process any DMCA counter-notice thJt they receive from any Youtube

producers: and that in the event of a dispute reg~rding the completeness of a counter

notice, Youtube process the counter notice and IfIlt the source of the copyright claim

dispute any error or misrepresentation in court.

COUNT VI- REFUSAL TO PROCESS tOTALLY COMPLETE DMCA

COUNTER NOTICES

54. Plaintiff incorporates by reference of the above paragraphs and exhibits, herein.

55. On September 1st, 2010 Plaintiff re-sent all 31disputed counter notices to the

Youtube copyright team in a final effort to resolvE1 this ridiculous mess. On this occasion,

Plaintiff used his work phone # (which his boss does not appreciate) and a PO Box

address in Missoula. These 3 counter notices ar~ totally complete and satisfy ever

parameter of the DMCA's suggested information for a valid Counter Notice. Not

surprisingly, Plaintiff has not been informed by Yqutube that the Counter Notice has

been processed.

56. Defendants' conduct constitutes direct infring~ment of Plaintiffs' exclusive rights

under the Copyright Act to publicly display Plaintiffs Fair Use audiovisual works.

Defendants' acts of infringement have been willful, intentional, and purposeful, in

disregard of and indifferent to the rights of Plainti1if.

57. As a direct and proximate result of Defendants' infringement of Plaintiffs' Fair Use

rights and exclusive rights under U.S.C. 17, Plaintiff is entitled to the maximum statutory

damages pursuant to 17 U.S.C. § 504(c). Alternatively, at Plaintiffs' election, pursuant to

17 U.S.C. § 504(b), Plaintiff shall be entitled to their damages plus Defendants' profits

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 Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 22 of 26

from infringement. as will be proven at trial.

58. Plaintiff is entitled to his costs, including rea~nable attomeys' fees, pursuant to 17

U.S.C. § 505.

59. Defendants' conduct is causing and, unless enjoined by this Court, will continue to

cause Plaintiff great and irreparable injury that cannot fully be compensated or

measured in money. Plaintiffs have no adequate remedy at law. Pursuant to 17 U.S.C.

§ 502, Plaintiffs are entitled to a permanent injun4tion requiring Defendants to employ

!
!

reasonable methodologies to prevent or limit infri~gement of Plaintiffs' FAIR USE rights.

60. Plaintiff requests that this court issue an imme(!iate injuction requiring Youtube to

restore all of Plaintiff's videos that it currently has blocked. Plaintiff also requests that

this court issue an immediate injunction barring D.efendant Youtube from using it's

current Copyright Identification System.

COUNT VII- REFUSAL TO RETRACT A KNOWINGLY FRAUDULENT DMCA

COPYRIGHT ~LAIM
61. Plaintiff incorporates by reference of the abo~ paragraphs and exhibits, herein.

62. Beginning in early 2007, Defendants did use ~ogus scanning software to issue false
I
copyright claims against Plaintiff's videos

Beginning in late 2009 Plaintiff decided to go arOl,lnd the Google/Youtube copyright

team and send his Counter Notices directly to Vic:\com attorney Stanley Pierre-Lewis.
!

Instead of immediately retracting the fraudulent c¢lpyright claim as Viacom had

promised to do under the EFF 'settlement', Mr. Lewis refused to accept the Counter

Notice under the alleged 'rule' that Viacom can ol)ly accept a Counter Notice sent thru

the Google/Youtube copyright team.

,
Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 23 of 26

63. Also, Plaintiff has sent enough counter noticelS that all Defendants clearly know that
i

every video posted by Plaintiff is a Fair Use vided.

BayTSP, Audible Magic and the rest of Defendants refuse to retract their blatantly

fraudulent copyright claims.

64. Defendants' conduct constitutes direct infring~ment of Plaintiffs' exclusive rights

under the Copyright Act to publicly display Plaintiffs Fair Use aUdiovisual works.

Defendants' acts of infringement have been willfljl, intentional, and purposeful, in

disregard of and indifferent to the rights of Plainti(f. (see Exhibit #23 Helu Admits To

Harassing My Mother).

65. As a direct and proximate result of Defendanls' infringement of Plaintiffs' Fair Use

rights and exclusive rights under USC 17, Plaintiff is entitled to the maximum statutory

damages pursuant to 17 U.S.C. § 504(c). Alternatively, at Plaintiffs' election, pursuant to

17 U.S.C. § 504(b), Plaintiff shall be entitled to their damages plus Defendants' profits

from infringement, as will be proven at trial.

Plaintiff is entitled to his costs, including reasonable attorneys' fees, pursuant to 17

U.S.C. § 505.

66. Defendant's conduct is causing and, unless enjoined by this Court, will continue to

cause Plaintiffs great and irreparable injury that cannot fully be compensated or

measured in money. Plaintiff has no adequate remedy

, at law. Pursuant to 17 U.S.C. §

502, Plaintiffs are entitled to a permanent injunction requiring Defendants to employ

reasonable methodologies to prevent or limit infringement of Plaintiffs' Fair Use rights.

67. Plaintiff requests that this court issue an immediate injunction requiring Defendant's

to immediately retract all Copyright claims against Plaintiffs videos posted to Plaintiffs

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 Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 24 of 26

GoogleNoutube and Myspace accounts. And, Plaintiff also requests that this court
i
i

issue an immediate injunction barring Defendant r,tiacom from issuing Copyright

take-down notices against Plaintiffs videos.

COUNT VIII - Perjury During Viacott. Vs. GoogleNolltube Suit

i

68. Plaintiff incorporates by reference of the above paragraphs and exhibits, herein.

69. Plaintiff requests a declaratory judgement stating that GoogleNoutube attomeys did

in fact commit perjury during the suit initiated by Viacom.

Plaintiff requests that this court revoke GoogleNQutube's "Safe Harbor" status which is

based upon that pe~ury; and that all attorneys involved in that pe~ury be cited for

contempt of court and jailed for not less than 100 days.

DECLARATORY RELIEF OF PION-INFRINGEMENT

70. Plaintiff repeats and incorporate herein by refrrence the allegations in the preceding

paragraphs and exhibits of this complaint.

71. There is no denying that Defendant's have repeatedly verified Plaintiff's videos as

Fair Use under the DMCNs exemptions for criticism. Plaintiff contends, and has reason

to believe that, consistent with the Copyright Act (>f the United States of America,

including those laws prohibiting direct, contributory or vicarious infringement, laws

protecting fair use and the First Amendment to the United States Constitution, and

judicial decisions construing such laws, doctrines~ and provisions, the creation and

posting of Viacom and Universal video clips by Plaintiff was and is lawful and

non-infringing. Wherefore, Plaintiffs request that the Court determine and adjudge that

each and every one of the above-stated propositipns states the law applicable to the

facts involved in this action.

 Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 25 of 26

WHEREFORE, Plaintiff prays fqr judgment as follows:

72. A declaratory judgment that Plaintiff has never infringed any copyright that

Defendants lawfully own; Injunctive relief restraining the Defendants, their agents,

servants, employees, successors and assigns, and all others in concert and privity

therewith, from bringing any lawsuit, threatening legal action, or delivering DMCA

take-down notices, or threats to terminate any video posted by Plaintiff or suspension of

the above named accounts in connection with Plaintiff's videos on the above named

Youtube and Myspace accounts including but no~ limited to its publication, distribution,

performance, display, licensing, or the posting to or linking from any website;

Monetary damages; lost potential earnings; Attorneys fees pursuant to 17 U.S.C. §

i

512(f), other portions of the Copyright Act inCIUdi~9 Section 505, or otherwise as
allowed by law; Plaintiff's costs and disbursements; and such other and further relief as

the Court shall find just and proper for the severel emotional stress suffered by Plaintiff

and his family. Plaintiff also requests that Stanle~ Pierre-Lewis and Mark Ishikawa (and

all others who have sent false copyright claims a~ainst Plaintiff or committed other acts

of perjury be cited for contempt of court for their repeated acts of perjury and be

sentenced to at least 100 days in jail for each fraudulent take-down notice and/or act of

perjury that Defendants used to terrorize the Plaintiff and his family. Plaintiff also

requests a preliminary injunction barring Defend<1nts from producing and/or airing The

Daily Show With John Stewart, The Colbert Report and SNL Weekend Update until this

suit is completed.

Plaintiff Asl<s

73. Plaintiff hereby requests a jury trial for all iss~es triable by jury including, but not
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 Case 9:10-cv-00133-DWM -JCL Document 2 Filed 11/30/10 Page 26 of 26

limited to, those issues and claims set forth in any amended complaint or consolidated
I

action.

Upon successful completion of this suit, Plaintiff also request tripling of all monetary

awards due to the conspiratorial nature of the Defendant's partnerships, agreements

and unlawful acts. Plaintiff swears under penalty of perjury that the allegations and

claims made above are true to the best of his possible knowledge under the

circumstances.

Class Action pqtential

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74. Plaintiff wishes to notify this court of his conti~uous efforts to find an attorney who
,
would be willing to file this complaint as a Class t\.ction Suit, due to the fact that

Defendants have a long history of abusing the D~CA.

Signed:

Todd Damase Ouellette

PO Box 7131, Missoula MT 59802
No Phone #
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TOddOuellette@ mail m ~
Date: (I '70 )D
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