MICROSYSTEMS SOFTWARE, INC., a Massachusetts corporation,
and MATTEL, INC., a Delaware corporation,
Plaintiffs,
vs.
SCANDINAVIA ONLINE AB, a Swedish
corporation; ISLANDNET.COM, a
Canadian corporation; EDDY L. O.
JANSSON, a Swedish citizen; and
MATTHEW SKALA, a Canadian citizen,
Defendants.
CIVIL NO.
MEMORANDUM IN SUPPORT OF
EX PARTE MOTION FOR
TEMPORARY RESTRAINING
ORDER AND
EXPEDITED DISCOVERY
Plaintiffs
Microsystems Software Inc. and Mattel, Inc.
(together, Microsystems") respectfully submit this memorandum in
support of
their Ex Parte Motion For Temporary Restraining Order and
Expedited Discovery.
INTRODUCTION
Defendants
Eddy L. O. Jansson and Matthew Skala ( Jansson" and
Skala", respectively) violated Federal and international
copyright
protections by reverse engineering Microsystems' Cyber
Patrol
child-protection software. Jansson and Skala then
created and posted
on their Web sites, hosted by defendants Scandinavia
On Line AB
( Scandinavia Online") and Islandnet.Com ( Islandnet"),
source code and
binaries designed to bypass Cyber Patrol (the Bypass
Code"). These
Web sites allow children to download the Bypass Code
and defeat their
parents' efforts to screen out sexually explicit and
other Web content
inappropriate for children such as materials advocating
drugs,
violence, explosives or cults.
The
Bypass Code created in violation of Microsystems'
copyrights is distributed on the World Wide Web and is
causing
Microsystems immediate and irreparable harm. Moreover,
the Bypass Code
posted on the defendants' Web sites potentially exposes
thousands of
children to material on the Internet that their parents
affirmatively
sought to screen out. Accordingly, Microsystems
respectfully requests
that the Court: (1) temporarily restrain all defendants
and order
defendants to take down the links to Jansson's and Skala's
Web sites
posting the Cyber Patrol Bypass Code and binaries, and
to enjoin
defendants from further disseminating such information;
(2) permit
Microsystems extremely limited expedited discovery to
further identify
Jansson and Skala as well as to track identities and
addresses of all
persons who accessed the Bypass Code; and (3) order the
defendants to
preserve all documents and data in their present form
and keep
inviolate the Bypass Code contained on Jansson's and
Skala's Web sites.
FACTS
Microsystems
developed and markets and licenses Cyber Patrol
software, which is designed to screen computer access
to sexually
explicit and other materials posted on the Internet (Ver.
Comp. ¶1).
Microsystems holds registered copyrights in the Cyber
Patrol software
program (Ver. Comp. ¶8). Anyone lawfully obtaining
a copy of Cyber
Patrol is required to agree to explicit prohibitions
against reverse
engineering the software as provided in the Cyber Patrol
software
license agreement:
This
is a legal agreement between you (either as an individual
or an
entity) and Mattel, Inc. BY INSTALLING OR USING THE
SOFTWARE,
YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
IF YOU
DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, AND YOU ARE
THE
ORIGINAL PURCHASER OF THE SOFTWARE, PROMPTLY UNINSTALL THE
SOFTWARE
FROM YOUR HARD DRIVE OR RETURN THE SOFTWARE (INCLUDING
PRINTED
MATERIALS) TO THE PLACE WHERE YOU PURCHASED IT FOR A
FULL
REFUND.
COPYRIGHT.
All intellectual property rights in the Software
(including
all animations, audio, images, maps, music,
photographs,
video, and text incorporated into the Software)
are
owned by Mattel, Inc. and its affiliates, suppliers, and
licensors,
and are protected by United States copyright laws
and
international treaty provisions . . . You may not reverse
engineer,
decompile, or disassemble the Software, except to the
extent
that this restriction is expressly prohibited by
applicable
law.
(Ver. Comp. ¶9). Jansson and Skala obtained
a copy of Cyber Patrol
software either by piracy or under the license agreement
(Ver. Comp.
¶10).
After
obtaining a copy of Cyber Patrol, Jansson and Skala
willfully, knowingly and deliberately undertook to violate
Microsystems' copyrights in the software (Ver. Comp.
¶21). Jansson and
Skala openly admit that they reverse engineered Cyber
Patrol
notwithstanding the express prohibitions in the license
agreement (Ver.
Comp. ¶12). Thereafter, again by their own
admission, Jansson and
Skala used the information they obtained by reverse engineering
to
develop the Bypass Code (Ver. Comp. ¶14).
Jansson and Skala then
posted links on their respective Web sites to enable
Internet users to
download the Bypass Code (Ver. Comp. ¶15).
On March
11, 2000, Jansson and Skala issued a press release
bragging that they had reverse engineered the Cyber Patrol
software and
posting the Web address at which users could download
for free the
Bypass Code (Ver. Comp. ¶16). In their press
release, Jansson and
Skala announced:
CyberPatrol(R)4,
a censorware" product intended to prevent
users
from accessing undesirable Internet content has been
reverse
engineered by youth rights activists Eddy L. O. Jansson
and
Matthew Skala. A detailed report of their findings,
titled,
The Breaking of Cyber Patrol(R)4", with commentary on
the
reverse engineering process and cryptographic attacks
against
the product's authentication system, has been posted on
the
World Wide Web . . . A package of source code and binaries
implementing
the attacks is included.
(Ver. Comp. ¶16). Jansson and Skala sent their
press release via
E-mail to individuals and organizations throughout the
United States
and the world, including a web-hosting service in Acton,
Massachusetts
(Ver. Comp. ¶17).
The
practical effect is that, through Jansson's and Skala's
Bypass Code promotion and Internet posting, children
may bypass their
parents efforts to screen out inappropriate materials
on the Internet
(Ver. Comp. ¶18).
ARGUMENT
I. Microsystems is
Entitled To Injunctive Relief
A temporary
restraining order or preliminary injunction should
issue where there has been a copyright violation.
17 U.S.C. § 502(a).
See Accusoft Corp. v. Palo, 923 F. Supp. 290, 297 (D.
Mass. 1996)
(issuing injunction pursuant to 17 U.S.C. § 502(a)
and Fed. R. Civ. P.
65(d) in copyright dispute). Courts apply a modified
injunctive relief
standard in copyright cases and the movant need only
show two factors:
likelihood of success on the merits and that the balance
of harms tips
in its favor. Id. at 295 (citation omitted).
A.
Microsystems Is Likely To Succeed On The
Merits Of Its Copyright Infringement Claim
To prove
a copyright violation, Microsystems need only
demonstrate (1) ownership of a valid copyright and (2)
copying by the
defendants. Data General Corp. v. Grumman Systems
Support Corp., 803
F. Supp. 487, 490 (D. Mass. 1992) (denying motion to
dismiss copyright
violation); Accusoft Corp., 923 F. Supp. at 295 (reciting
elements of
copyright claim). [I]ntermediate copying
of computer object code may
infringe exclusive rights granted to the copyright owner".
Sega
Enter., 977 F. Supp. at 1519.
In this
case, there can be no dispute that Microsystems has a
valid copyright in Cyber Patrol (Ver. Comp. ¶8).
In addition, Jansson
and Skala have admitted that they reversed engineered
Microsystems'
copyrighted work, which is a prima facie violation of
the copyright
laws (Ver. Comp. ¶¶12, 13). In fact,
defendants Jansson and Skala
either unlawfully obtained the Cyber Patrol software
in the first place
or obtained it by license which they then violated by
the reverse
engineering process (Ver. Comp. ¶10). In either
case, the defendants
have violated Microsystems' copyright. See Sony
Computer Enter., 2000
WL 144399 at *6; Sega Enter., 977 F.2d at 1518.
B.
The Fair Use Exception Is Inapplicable Here
To establish
that a copyright violation is permitted by the
fair use exception, courts weigh the following four statutory
factors:
(1)
the purpose and character of the use, including whether
such
use is of a commercial nature or is for nonprofit
educational
purposes;
(2) the nature of the copyrighted work;
(3) the
amount and substantiality of the portion used in
relation
to the copyrighted work as a whole; and
(4) the
effect of the use upon the potential market for or
value
of the copyrighted work.
17 U.S.C. § 107.
As the
Ninth Circuit held in Sony Computer Entertainment, Inc.
v. Connectix Corp., and Sega Enter. LTD. v. Accolade,
Inc., Jansson and
Skala's disassembly of copyrighted object code was, as
a matter of law,
a fair use only under narrow exceptions. Sony Computer
Enter, 2000 WL
144399 at *6; Sega Enter., 977 F.2d at 1518. The
narrow exception
carved out by the Ninth Circuit is inapplicable here
because Jansson
and Skala can claim no "protected by copyright
or some other such
"legitimate reason" for reverse engineering. Sega
Enter., 977 F.2d at
1518. Rather, Jansson and Skala were accessed Microsystems'
copyrighted code in with the purpose to destroy its usefulness
and
cause irreparable harm to Microsystems. This conduct
does not fall
into the narrow exception carved out by the Ninth Circuit.
Furthermore,
to negate fair use one need only show that if the
challenged use should become widespread, it would adversely
affect the
potential market for the copyrighted work." Harper
& Row, Pub. Inc.,
v. Nation Ent., 417 U.S. 539, 568 (1985) (finding no
fair use). By
their own admission, Jansson and Skala created the Bypass
Code to
break" Cyber Patrol (Ver. Comp., Ex. A).
Software explicitly designed
to make Cyber Patrol ineffective for its intended use,
by definition,
seeks to destroy the market for Microsystems' product.
Moreover,
the fair use exception is unavailable here because
the express purpose of the Bypass Code is contrary to
Congressional
intent. The fair use exception cannot be used to
protect work that
expressly violates public policy.
C.
The Harm To Microsystems Outweighs
Any Possible Harm to Defendants
An injunction
should enter where the harm to the copyright
holder outweighs any harm to the infringer. Accusoft
Corp., 923 F.
Supp. at 295 (granting injunction). In this case,
the defendants will
suffer absolutely no harm if required to cease all dissemination
of the
Bypass Code. In contrast, Microsystems -- as well
as the public --
will continue to suffer irreparable harm unless the defendants
are
prohibited from distributing the Bypass Code.
II. Expedited Discovery
and a Document Preservation Order Is
Necessary to Determine the Extent of Microsystems'
Irreparable
Harm and To Promote Mitigation of Damages
Expedited
discovery is appropriately where, as here, delay may
result in continued irreparable harm. See, e.g.,
Express One Int'l,
Inc. v. U.S. Postal Service, 814 F. Supp. 87, 92 (D.D.C.
1992)
(enjoining contract and granting expedited discovery);
Polo Fashions,
Inc. v Everything Goes, No. 84-11549-K, slip op.
at 7-9 (D. Mass. May
18, 1984) (granting expedited discovery and temporary
restraining order
ex parte because it is the only method of preserving
a state of
affairs in which the Court can provide effective final
relief").
Expedited discovery is also appropriate to enable
the court to judge
the parties' interests and respective chances for success
on the
merits." Edudata Corp. v. Scientific Computers,
Inc., 599 F. Supp.
1084, 1088 (D. Minn.) (granting expedited discovery),
aff'd in part and
rev'd in part on other grounds, 746 F.2d 429 (8th Cir.
1984).
Microsystems
is suffering irreparable harm from the publication
of the Bypass Code on Jansson's and Skala's Web sites,
but the full
extent of the irreparable harm is presently unknown.
Indeed,
Microsystems needs to discover who has downloaded the
Bypass Code to
ensure that it is not distributed in further violation
of Microsystems'
copyrights. In addition, Microsystems needs
further identification of
Jansson and Skala for proper service of these papers
and the Verified
Complaint. In short, given the speed with which
information spreads on
the Internet, Microsystems is entitled to know more about
Jansson and
Skala and the breadth of the impact of their posting
without waiting
for the traditional discovery mileposts.
Microsystems'
requested discovery is narrowly tailored and asks
Scandinavia Online and Islandnet only to respond to two
document
requests to provide information easily accessible to
them and the usual
time provided by the Rules is unnecessary.
Microsystems
also requests that this Court issue a document
preservation order which would require all defendants
to preserve and
hold inviolate Web sites, documents, source code and
binaries relating
to Cyber Patrol and the Web sites discussed above.
CONCLUSION
For
the foregoing reasons, Microsystems respectfully requests
that the Court enter a temporary restraining order against
the
defendants and grant the requested expedited discovery
and document
preservation order.
Dated: March 15, 2000
Respectfully submitted,
_________________________________
Irwin B. Schwartz BBO#548763
Joel G. Beckman BBO#553086
Laura N. Kling BBO#638313
SCHWARTZ and NYSTROM, LLC
419 Boylston Street
Boston, Massachusetts 02116
(617) 421-1800
(617) 421-1810 (fax)
Counsel
for Microsystems Software, Corp. and Mattel, Inc.
----------------------------------------------------------------------------
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
----------------------------------
MICROSYSTEMS SOFTWARE, INC., a
Massachusetts corporation,
and MATTEL, INC., a Delaware
corporation,
Plaintiffs,
vs.
SCANDINAVIA ONLINE AB, a Swedish
corporation; ISLANDNET.COM, a
Canadian corporation; EDDY L. O.
JANSSON, a Swedish citizen; and
MATTHEW SKALA, a Canadian citizen,
Defendants.
VERIFIED COMPLAINT
INTRODUCTION
Plaintiffs
Microsystems Software, Inc. and Mattel, Inc.
(together, Microsystems") develop, market, and
license the Cyber
Patrol" software program, which is designed to filter
out certain
designated material on the Internet. Defendants
Eddy L. O. Jansson and
Matthew Skala ( Jansson and Skala") willfully and knowingly
violated
the copyright laws (17 U.S.C. §101 et. seq.) and
wrongfully converted
Cyber Patrol, by reverse engineering the software, developing
source
code and binaries to bypass its protections and then
posting that
bypass information on the Internet in downloadable form.
Jansson and
Skala bragged about their unlawful conduct in a March
11, 2000 press
release that they circulated widely on the Internet,
including through
web sites in Massachusetts and elsewhere in the United
States.
Defendants Scandinavia Online AB ( Scandinavia Online")
and
Islandnet.Com ( Islandnet") host Jansson's and Skala's
Web sites that
contain links to download the illegally-created source
code and
binaries.
Microsystems
seeks in this action, among other things,
immediate injunctive relief ordering defendants to take
down Jansson's
and Skala's Web-site links posting the Cyber Patrol bypass
source code
and binaries, and to enjoin defendants from further disseminating
such
information. The need for injunctive relief is
critical: (1)
Microsystems will prevail on the merits of their copyright
and other
claims; (2) without injunctive relief, Microsystems will
continue to
suffer irreparable harm; and (3) no public interest is
served by
defendants' continued distribution of illegally-produced
source code
and binaries to bypass Cyber Patrol, which program is
designed to
otherwise prevent sexually explicit or other inappropriate
material
from getting into the hands of children.
PARTIES
1.
Plaintiff Microsystems Software, Inc. is a Massachusetts
corporation with its principal place of business at 600
Worcester Road,
Framingham, Massachusetts. Microsystems is the
developer and
distributor of the Cyber Patrol software program, which
is the most
widely-used Internet filtering software. America
Online uses
Microsystems' technology for its parental controls and
hundreds of
thousands of families have purchased Cyber Patrol software
to help
protect children from Web sites such as those that advocate
violence or
hate, or post sexually explicit content meant for adults.
2.
Plaintiff Mattel, Inc. is a Delaware corporation with its
world headquarters and principal place of business in
El Segundo,
California. Mattel owns Microsystems.
3.
Defendant Eddy L. O. Jansson is an individual who, upon
information and belief, resides in Sweden.
4.
Defendant Matthew Skala is an individual who, upon
information and belief, resides in British Columbia,
Canada.
5.
Defendant Scandinavia Online AB is, upon information and
belief, a Swedish company. Scandinavia Online's
own Web site
identifies its mailing address as Box 1388, S-111 93
Stockholm, Sweden.
Scandinavia Online hosts Jansson's Web site.
6.
Defendant Islandnet.Com is, upon information and belief, a
Canadian company. Islandnet's own Web site identifies
a mailing
address of 1412 Quadra Street, Victoria, British Columbia
V8V 2L1,
Canada. Islandnet hosts Skala's Web site.
JURISDICTION 7. This Court has original jurisdiction
over this action
pursuant to 28 U.S.C. § 1331. This Court also
has jurisdiction over
this case under 28 U.S.C. §§ 1332 in that there
is diversity of
citizenship between the parties and the amount in controversy
exceeds
$75,000.
FACTS
8.
Microsystems develops, markets and licenses Cyber Patrol
software, which is designed to filter sexually explicit
or other
materials not appropriate for children (e.g. material
advocating drugs,
violence, bombmaking, cults, etc.) posted on the World
Wide Web.
Microsystems holds registered copyrights in the Cyber
Patrol software
program.
9.
The Cyber Patrol license agreement expressly prohibits
reverse engineering or decompiling the software:
This
is a legal agreement between you (either as an individual
or an
entity) and Mattel, Inc. BY INSTALLING OR USING THE
SOFTWARE,
YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
IF YOU
DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, AND YOU ARE
THE
ORIGINAL PURCHASER OF THE SOFTWARE, PROMPTLY UNINSTALL THE
SOFTWARE
FROM YOUR HARD DRIVE OR RETURN THE SOFTWARE (INCLUDING
PRINTED
MATERIALS) TO THE PLACE WHERE YOU PURCHASED IT FOR A
FULL
REFUND.
COPYRIGHT.
All intellectual property rights in the Software
(including
all animations, audio, images, maps, music,
photographs,
video, and text incorporated into the Software)
are
owned by Mattel, Inc. and its affiliates, suppliers, and
licensors,
and are protected by United States copyright laws
and
international treaty provisions . . . You may not reverse
engineer,
decompile, or disassemble the Software, except to the
extent
that this restriction is expressly prohibited by
applicable
law.
(emphasis added).
10.
Jansson and Skala obtained a copy of Cyber Patrol software
either by piracy or under the Cyber Patrol license agreement.
11.
Piracy of the Cyber Patrol software by use of an
unlicensed copy violates copyright law.
12.
Even if Jansson and Skala lawfully obtained a copy of
Cyber Patrol, they admit that they then reverse engineered
the
software, which is expressly prohibited by the Cyber
Patrol license
agreement.
13.
Such reverse engineering violates copyright law.
14.
Thereafter, again by their own admission, Jansson and
Skala used the information they obtained by reverse engineering
the
Cyber Patrol software to develop source code and binaries
that enable a
user to bypass the protections built into the Cyber Patrol
software
program (the Bypass Code").
15.
Jansson and Skala then posted links on their respective
Web sites to enable Internet users to download the Bypass
Code.
16.
On March 11, 2000, Jansson and Skala issued a press
release bragging that they had reverse engineered the
Cyber Patrol
software and announcing that they had posted Bypass Code
on Jansson's
Web site. Skala's Web site posted links to Jansson's
Web site. In
their press release, Jansson and Skala expressly admitted
to reverse
engineering the Cyber Patrol software:
CyberPatrol(R)4,
a censorware" product intended to prevent
users
from accessing undesirable Internet content has been
reverse
engineered by youth rights activists Eddy L. O. Jansson
and
Matthew Skala. . . . A detailed report of their findings,
titled,
The Breaking of Cyber Patrol(R)4", with commentary on
the
reverse engineering process and cryptographic attacks
against
the product's authentication system, has been posted on
the
World Wide Web . . . A package of source code and binaries
implementing
the attacks is included.
(A redacted copy of the press release is attached as
Exhibit A).
17.
Jansson and Skala then forwarded their press release via
E-mail to individuals and organizations throughout the
United States
and the world, including web-hosting services in Acton,
Massachusetts,
Minnesota and Washington.
18.
The practical effect of Jansson's and Skala's conduct is
that, through links posted on Jansson's and Skala's Web
sites, children
may obtain the Bypass Code and thereby defeat parents'
efforts to
screen inappropriate material.
19.
From a commercial perspective, Microsystems has suffered
and continues to suffer immediate and irreparable harm
through the
violation of its copyrights as well as the distribution
of the
illegally-created Bypass Code designed to render the
Cyber Patrol
software program worthless.
COUNT I
(Copyright Infringement against Jansson and Skala)
20.
Microsystems repeats, realleges and incorporates by
reference herein the allegations set forth in paragraphs
1-19 above.
21.
Jansson's and Skala's reverse engineering of the Cyber
Patrol software program constitutes knowing, intentional
and deliberate
violation of Microsystems' copyrights.
22.
As a result, Microsystems has suffered and continues to
suffer damages and irreparable injury.
COUNT II
(Copyright Infringement Against Islandnet and Scandinavia
Online)
23.
Microsystems repeats, realleges and incorporates by
reference herein the allegations set forth in paragraphs
1-22 above.
24.
Islandnet's and Scandinavia Online's posting of material
obtained and created in violation of Microsystems' copyrights
also
violates Microsystems' copyrights.
25.
As a result, Microsystems has suffered and continues to
suffer damages and irreparable injury.
COUNT III
(Breach of Licensing Agreement against Jansson and Skala)
26.
Microsystems repeats, realleges and incorporates by
reference herein the allegations set forth in paragraphs
1-25 above.
27.
To the extent that Jansson and Skala properly obtained a
copy of the Cyber Patrol software program, Jansson and
Skala breached
the express terms of the Cyber Patrol licensing agreement.
28.
As a result, Microsystems has suffered and continues to
suffer damages and irreparable injury.
COUNT IV
(Interference with Advantageous Business
Relations against Jansson and Skala)
29.
Microsystems repeats, realleges and incorporates by
reference herein the allegations set forth in paragraphs
1-29 above.
30.
Defendants Jansson and Skala intentionally or recklessly
interfered with Microsystems' relationships with third
party users of
Cyber Patrol.
31.
As a result, Microsystems has suffered and continues to
suffer damages and irreparable injury.
COUNT V
(Conversion against Jansson and Skala)
32.
Microsystems repeats, realleges and incorporates by
reference herein the allegations set forth in paragraphs
1-31 above.
33.
Defendants Jansson and Skala tortiously and unjustifiably
converted Cyber Patrol for their own use.
34.
As a result, Microsystems has suffered and continues to
suffer damages and irreparable injury.
COUNT VI
(Theft of Trade Secrets against Skala and Jansson)
35.
Microsystems repeats, realleges and incorporates by
reference herein the allegations set forth in paragraphs
1-34 above.
36.
The Cyber Patrol software program constitutes and contains
proprietary and confidential trade secrets owned by Microsystems.
37.
By reverse engineering the Cyber Patrol software program,
Jansson and Skala stole such trade secrets and used them
for their own
use without Microsystems' permission.
38.
As a result, Microsystems has suffered and continues to
suffer damages and irreparable injury.
WHEREFORE, Plaintiffs respectfully request that this Court:
A.
Issue a temporary restraining order, and preliminary and
permanent injunctions ordering defendants, their employees,
agents and
assigns to take down the links posted on Jansson's and
Skala's Web
sites to the Cyber Patrol bypass source code and binaries,
and to
enjoin defendants from further disseminating such information.
B.
Enter judgement in favor of Plaintiffs on Counts I-VI in an
amount to be determined at trial.
C.
Impose penalties for willful violation of the copyright
laws.
D.
Order such further relief as the Court deems just and
proper.
PLAINTIFFS
HEREBY REQUEST A JURY ON ALL ISSUES SO TRIABLE.
Microsystems Software, Inc.
and
Mattel, Inc
By their attorneys,
_________________________________
Irwin B. Schwartz BBO#548763
Joel G. Beckman BBO#553086
Laura N. Kling BBO#638313
SCHWARTZ and NYSTROM, LLC
419 Boylston Street
Boston, Massachusetts 02116
(617) 421-1800
(617) 421-1810 (fax)
Dated: March 15, 2000
VERIFICATION
David McEvoy hereby states:
1.
I am Vice President and Assistant General Counsel for
Mattel, Inc. and Microsystems Software, Inc.
2.
I have read the foregoing complaint, which I declare to be
true and correct to the best of my knowledge, information
and belief.
SWORN
TO UNDER THE PAINS AND PENALTIES OF PERJURY UNDER THE
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND THE UNITED
STATES.
Executed
on 16 March 2000 at El Segundo, California.
-----------------------------------------------------------------------
David McEvoy
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
----------------------------------
MICROSYSTEMS SOFTWARE, INC., a
Massachusetts corporation,
and MATTEL, INC., a Delaware
corporation,
Plaintiffs,
vs.
SCANDINAVIA ONLINE AB, a Swedish
corporation; ISLANDNET.COM, a
Canadian corporation; EDDY L. O.
JANSSON, a Swedish citizen; and
MATTHEW SKALA, a Canadian citizen,
Defendants.
PLAINTIFFS' EX PARTE MOTION FOR TEMPORARY
RESTRAINING ORDER AND EXPEDITED DISCOVERY
Upon
the Verified Complaint, this Ex Parte Motion and the
attached Memorandum of Law, plaintiffs Microsystems Software
Inc. and
Mattel, Inc. (collectively, Microsystems") move
pursuant to Federal
Rules of Civil Procedure Rules 4, 30(a), 34(b) and 65(b)
that the Court
issue a Temporary Restraining Order and order defendants
Scandinavia
Online AB and Islandnet.Com to respond to the limited
discovery
requested by Microsystems. In support of its motion,
Microsystems
relies on the Memorandum of Law submitted herewith and
states as
follows:
1.
Microsystems develops, markets and licenses the Cyber
Patrol" software program, which is designed to filter
out certain
designated material on the Internet. Defendants
Eddy L. O. Jansson and
Matthew Skala ( Jansson and Skala") willfully and knowingly
violated
the copyright laws (17 U.S.C. §101 et. seq.) and
wrongfully converted
Cyber Patrol, by reverse engineering the software, developing
source
code and binaries to bypass its protections and then
posting that
bypass information on the Internet in downloadable form.
Jansson and
Skala touted their unlawful conduct in a March 11, 2000
press release
that they circulated widely on the Internet, including
through web
sites in Massachusetts and elsewhere in the United States.
The
corporate defendants host Jansson's and Skala's Web sites
that contain
links to download the illegally-created source code and
binaries.
2.
Microsystems seeks in this action, among other things,
immediate injunctive relief ordering defendants to take
down the links
on Jansson's and Skala's Web sites that post the Cyber
Patrol bypass
source code and binaries, and to enjoin all defendants
from further
disseminating such information.
WHEREFORE
Microsystems respectfully requests that this Court:
(1)
issue a Temporary Restraining Order requiring the
defendants to: take down the links posted on Jansson's
and Skala's Web
sites to the Cyber Patrol bypass source code and binaries,
and cease
from further disseminating any such information;
(2)
grant Microsystems leave to request that the corporate
defendants immediately produce the documents as described
in
Plaintiffs' First Requests for Production of Documents
attached as
Exhibit A to the (Proposed) Order, submitted herewith;
(3)
indefinitely preserve inviolate all such Web sites, source
or object code and documents relating to Cyber Patrol
as well as all
records which reflect the identity or number of persons
who have
accessed such Web site and/or downloaded information
from the Web
sites; and
(4grant any other relief the Court deems just and proper.
ORAL ARGUMENT REQUESTED
Plaintiffs respectfully request oral argument on this
Motion.
Microsystems Software, Inc. and Mattel, Inc.
By their attorneys,
_________________________________
Irwin B. Schwartz BBO#548763
Joel G. Beckman BBO#553086
Laura N. Kling BBO#638313
SCHWARTZ and NYSTROM, LLC
419 Boylston Street
Boston, Massachusetts 02116
(617) 421-1800
(617) 421-1810 (fax)
Dated: March 15, 2000