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61. Defendants conduct, as herein above described, is causing and, unless enjoined and restrained by this Court. will continue to cause plaintiff great and irreparable injury that cannot be fully compensated or measured in money. Plaintiff has no adequate remedy at law Pursuant to 17 U.S.C. §502, plaintiff is entitled to a preliminary and permanent injunction prohibiting further vicarious infringements of plaintiff's copyrights. THrRD CAUSE OF AcrroN FOR VIOLATIONS OF CALIFORNIA CIVIL CODE SECTION 980 (Against all Defendants) 62. Plaintiff repeats and realleges paragraphs 1 through 61 with the same force and effect as though set out here at length. 63. Plaintiff possesses exclusive ownership interests in and to the pre-1972 Recordings pursuant to California Civil Code Section 980(a)(2) and under the common law. Through their conduct as alleged herein, Defendants have violated plaintiff's exclusive ownership interests in and to the Pre-1972 recordings. 64. As a direct and proximate result of defendants' conduct in violation of plaintiffs exclusive ownership interests in and to the Pre-1972 Recordings, Defendants have received ~ , COMPLAINT 15 investments and proceeds and plaintiff has been damaged in an amount subject to proof at the time of trial. 65. Through its conduct averred herein, Defendants are guilty of oppression, fraud and/or malice and plaintiff, in addition to its actual damages are, by reason thereof, is entitled to recover exemplary and punitive damages against Defendants. 66. Defendants' conduct as alleged herein, is causing and, unless enjoined and restrained by this Court, will continue to cause plaintiff great and irreparable injury that cannot be fully compensated or measured in money. Plaintiff has no adequate remedy at law. Plaintiff is entitled to a preliminary and permanent injunction prohibiting further violation of plaintiff's rights in the Pre-1972 Recordings. FOURTH CAUSE OF ACTION FOR UNFAIR COMPETITION (Against all Defendants) 67. Plaintiff repeats and realleges paragraphs 1 through 66 with the same force and effect as though set out here at length. 68. Plaintiff represented Jefferson Airplane. During the time of this representation, Jefferson Airplane was under contract to Defendant BERTELSMANN who thereby had the right to distribute the songs recorded by Jefferson Airplane. As the representative of Jefferson Airplane, Plaintiff owns the publishing rights to the songs recorded by Jefferson Airplane. Defendant BERTELSMANN can not distribute Jefferson Airplane recordings without paying publishing royalties to Plaintiff for each instance of distribution. 69. Plaintiff is informed and believes and based thereon alleges that Defendant BERTELSMANN is now the majority shareholder and owner of Napster, Inc. The fee based system for Napster users and the system to account for downloads, sales, and royalties, will not be in place for a considerable period of time. In the interim period, on or about October 30, 2000, Napster, Inc. obtained $50 million from Defendant BERTELSMANN. Subsequent to October 30, 2000 and continuing into the present and forseeable future, Napster users are ~ . COMPLAINT 16 and will continue to commit unauthorized copies and distribution of Jefferson Airplane recordings, depriving Plaintiff of royalties that BERTELSMANN is contractually bound to pay. 70. The foregoing acts and conduct of Defendants constitutes an appropriation and invasion of the property rights of plaintiff, and constitute unfair competition under California Business & Professions Codes section 17200 and under the common law. 71. As a direct and proximate result of Defendants' conduct, as alleged herein, plaintiff is further entitled to recover all proceeds and other compensation received or to be received by Napster and BERTELSMANN arising from its users' infringements of Plaintiff's music. Plaintiff requests the Court to order Defendants to render an accounting to ascertain the amount of such profits and compensation. 72. As a direct and proximate result of Defendants' unfair competition, plaintiff has been damaged, and Defendants have been unjustly enriched, in an amount that shall be proved at trial for which damages, restitution and disgorgement should include a declaration by this Court that BERTELSMANN is a constructive trustee for the benefit of plaintiff and an order that Bertelsmann conveys to plaintiffs all the gross receipts and received or to be received that are attributable to infringement of Plaintiff's music. 73. Defendants conduct is despicable, malicious and done with ill will toward plaintiff with utter disregard to his injury and damages and as such plaintiff is entitled to Punitive and Exemplary Damages in the sum of 20% of defendant BERTELSMANN's $50,000,000 private investment in Napster, in the sum of $10,000,000, subject to proof at the time of trial. 74. Defendants conduct, as herein above alleged, is causing and, unless enjoined and restrained by this Court, will continue to cause plaintiff great and irreparable injury that cannot be fully compensated or measured in money, Plaintiff has no adequate remedy at law. Pursuant to California Business & Professions Code Section 17203 plaintiff is entitled to a preliminary and permanent injunction prohibiting further acts of unfair competition. ~ . COMPLAINT 17 FIETH CAUSE OF ACTION FOR INTERFERENCE WITH ECONOMIC RELA TIONS {Against all Defendants} 75. Plaintiff repeats and realleges paragraphs 1 through 74 with the same force and effect as though set forth here at length. 76. Plaintiff alleges that an economic relationship exists between San Francisco Sound and its distributors and consumers. Between 1968 and the present. plaintiff customarily provided sound recordings to various retailers and distributors including, but not limited to Valley Media, Bayside, and MSI of Miami. Plaintiff has agreed to supply the above entities i with its sound recordings as needed. 77. Defendants knew that Plaintiff had an economic relationship between San Francisco Sound and distributors and consumers. 78. Despite such known relationships, Defendants continue to distribute copies of Plaintiffs music with the intent to harm plaintiff financially and to induce the above mentioned third parties to sever their business relationship with plaintiff. 79. In May of 2000, Valley Media ended its relationship with Plaintiff as a result of Defendants partner Napster's conduct. Additionally, prospective business relations with other distributors never occurred due to Defendants' conduct. 80. As a proximate result of Defendants' conduct and the severance of business relations by Valley Media, Plaintiff has suffered damages in a sum to be proven at trial. 81. The aforementioned acts of defendants, and each of them, were willful, malicious and oppressive. Plaintiff is entitled to punitive and exemplary damages in the amount of $101000,000. 82. These defendants threaten to continue to disrupt the business relations of the Plaintiff and unless restrained and enjoined, will continue to do SO, all to plaintiff's great and -" . COMPLAINT 18 irreparable injury for which damages would not afford adequate relief, in that they would not completely compensate for the injury to Plaintiff's business reputation and goodwill. SIXTH CAUSE OF ACTION FOR ACCOUNTING {Aa~in~t 211 [)ofond2ntc) 83. Plaintiff repeats and realleges paragraphs 1 through 82 with the same force and effect as though set out here at length, 84. Defendant BERTELSMANN announced its partnership with Napster, Inc. on October 30, 2000 and it's payment of approximately $50 million for'ownership of approximately 60% of Napster, Inc. BERTELSMANN will develop and market Napster, Inc. on a monthly user fee basis with a substantial portion to be paid to the artists, publishers and rights-holders . 85. Napster, Inc. has long contended that it would be technologically impossible to filter out copyrighted works and has no way to pinpoint its users. However, the technology to specially encode the musical compositions to prevent their duplication has existed for many years and has only improved with the advances in technology. Warner Music utilizes this technology on its site which prevents users from downloading material unless they pay an access fee. A company as technologically advanced as Napster, Inc. being on the cutting edge of the use of file sharing, it knew or should have known that the technology to encrypt the musical compositions to prevent the unauthorized downloads from individual users exists. Additionally, web companies routinely are able to "pinpoint" their users, to require memberships for accessibility to products and to take credit card payments or web cash over the internet. The representations by Napster, Inc. and its counsel to the contrary are blatantly disingenuous misrepresentations to the all parties and to the Court. . 86, If Napster, Inc.'s assertions that the technology did not exist, then in light of the i partnership announcement of October 30, 2000, it is apparent that Napster, Inc. has within the ~ . COMPLAINT 19 ~ past 6 months developed the technology to pinpoint its users in order to charge users a monthly access fee. 87. If Napster, Inc. has not developed the technology to pinpoint its users m order to chare users a monthly access fee, then the announcement that such a system will be used, is a disingenuous representation made in an effort to camouflage BERTELSMANN's intended use of Napster, Inc. to engage in the piracy of copyrighted material. 88. Plaintiff has been substantially injured and damaged financially by the actions of the defendants and is entitled to compensation. 89. Defendant BERTELSMANN and Napster, Inc. are the only entities in possession, custody and control of user information and the only entities to have the proprietary technology necessary to create the user profiles and related databases of each instance of copyright infringement, the identity and location of each user-infringer. This information is vital to plaintiff, and other plaintiffs similarly situated, to determine the extent of the copyright infringement to their individual interests, and the fair market value 1hereof. This information is I necessary to determine damages against BERTELSMANN and its partners. I 90. Plaintiff demands an accounting be made of all Napster user identification information, each musical composition downloaded by each user, 1he date each such musical composition was downloaded from Napster by each user.