91. The information garnered from this accounting will be utilized to determine the
extent of Plaintiff's injuries and damages, and can be utilized by o1her rights-holders to make
similar determinations in regard to their particular interests.
92. It is further requested that BERTELSMANN provide an accounting of all financial
gain, both gross and net, from its illegal piracy of musical compositions from the time of
Napster's inception until BERTELSMANN's partnership on October 30, 2000 and then
continuing into the future until such time as 1he ac1ual accounting is provided.
93. Financial gain includes, but is not limited to, re\Jenues from users, advertisers,
pro~ers, and goodwill with users.
COMPLAINT
20
SEVENTH CAUSE OF ACTION
FOR INDEMNIFICATION
(Against all Defendants)
94. Plaintiff repeats and realleges paragraphs 1 through 93 with the same force and
effect as though set out here at length.
95. Plaintiff is the owner of copyrights in various musical compositions as set forth
above.
96. The defendants knew of the copyright interests of Plaintiff and other Plaintiffs
similarly situated in the musical compositions throughout the music industry.
97. The Defendants had a duty under the Copyright Act to exercise due care in the
distribution, reproduction, duplication, and provision of all musical compositions to the users so
as not to infringe on the publishing, trademark, distribution, and publishing rights as well as
copyrights of interested holders thereof, and to ensure that all parties, Plaintiff among them, be
afforded the protection of the Copyright Act and thereby compensated for the fruits of their labor.
The defendants have an affirmative obligation to not engage in any conduct or facilitate the
engagement of any conduct by others, which would th~eaten, endanger, infringe or otherwise
harm those said entities and individuals legitimately and legally entitled to the use, distribution,
financial or other entitlements connected with each such musical composition.
98. The actions of the defendants, and each of them, were illegal violations of the
applicable provisions of the Copyright Act depriving Plaintiff and others similarly situated from the
rewards of their rights from musical compositions to which they are entitled,
99. Plaintiff did not expressly, impliedly or in any manner condone, authorize, ratify or
approve of any actions taken by the defendants, which actions violated the rights of individuals
and entities afforded protection of their rights to and in musical compositions pursuant to the
applicable provisions of the Copyright Act, nor did Plaintiff waive, suspend abandon or otherwise ;
I
grant any defendants license to usurp his rights and protections under the Copyright Act.
~109. Plaintiff has not caused or otherwise contributed to his own injury and damage in
COMPLAINT
21
any amount or degree whatsoever. Plaintiff's injuries and damages are a direct and proximate
result of the actions of the defendants.
101. Plaintiff is entitled to compensatory damages from the defendants in an amount
subject to proof at the time of trial.
I
102. The actions of the defendants were done with knowledge, malice, and ill will
toward the plaintiff, and other plaintiffs similarly situated, in total disregard of plaintiffs legal rights
and the defendants responsibility to conduct his activities in deference to said rights and the
pertinent provisions of the Copyright Act which afford such protections and delineate the
obligations of all interested entities and individuals concerning the musical compositions.
Plaintiff is therefore entitled to punitive and exemplary damages in an amount sufficient to make
sure that the defendants, and other would be pirates, whether small entities or large ones like
Defendant BERTELSMANN will steer clear of emulating Napster. BERTELSMANN is an
international conglomeration that just spent $50,000,000 to begin to develop a fee based user
system in partnership with Napster, Inc.. The amount of money awarded must be significantly
higher than $50,000,000 to send an adequate message to BERTELSMANN, Napster, Inc. and
others who may try to circumvent the bands, small and large, whether it's Moby Grape, Jefferson
Airplane or Fraternity of Man. The damages must send a message that the artists who depend
on the sales of their music compositions to earn a living will be protected. The big labels have
profited into the billions of dollars from the work of the bands, the vast majority of whom struggle
to earn a living. Send a message to the labels, and to the bands. Award a percentage of all
private investment capital and revenues from whatever source that have flowed and will flow to
Napster, Inc. and its new partner, BERTELSMANN, including, but not limited to, advertisers,
promoters, sales, user fees goodwill and all other financial benefits from the defendants. It has
been reported that most of the revenues from the new fee based user access system will be
used to compensate right-holders and artists. If the Defendants themselves believe that most of
the revenues should be paid out, then punitive and exemplary damages should be
approximately 75% of the revenues or more, in an amount subject to proof at the time of trial.
*' ,
COMPLAINT
22
( EIHTH CAUSE OF ACTION
FOR DECLARATORY RELIEF
(Against All Defendants}
103. Plaintiff repeats and realleges paragraphs 1 through 102 with the same force and
effect as though set out here at length.
104. Defendant is a distributor of musical compositions, including compositions owned
by Plaintiff. The agreement provides that plaintiff is to receive compensation for the
distribution of its musical compositions.
105. On October 30, 2000, Defendant announced a partnership with Napster, Inc.
whereby defendant would develop the Napster services on a user fee basis. BERTELSMANN
paid approximately $50 million to Napster, Inc. in exchange for 60% of the shares and
ownership of Napster, Inc.
106. Plaintiff contends that Napster, Inc. and BERTELSMANN are pirating musical
compositions depriving Plaintiff and other rights-holders of compensation for the fruits of their
labor.
107 .An actual controversy has arisen and now exists between plaintiff and defendant
regarding their respective rights and duties to each other. Plaintiff contends that the defendant
has no right to promote or otherwise engage in illegal activity in derogation of plaintiff's
copyrights and to cause plaintiff to suffer irreparable financial injury while at the same time is a
major label distributor of plaintiffs musical compositions.
108. Plaintiff desires a judicial determination of his rights and duties, and a declaration as
to the respective rights and obligations of the parties.
109. A judicial declaration is necessary and appropriate at this time under all the
circumstances so that plaintiff may determine the rights and obligations between plaintiff and
BERTELSMANN relative to the distribution of musical compositions and compensation therefor.
~ o
COMPLAINT
23
WHEREFORE, plaintiff demands judgment as follows:
CLAIMS FOR COPYRIGHT INFRINGEMENT
1 .That the defendants be held to have infringed plaintiff's copyrights in the subject
Musical Compositions and each of them.
2. That the Court find a substantial likelihood that defendants have and will continue to
infringe plaintiffs copyrights in the subject Musical Compositions unless enjoined from doing
so.
3. That defendants, the corporate directors and officers, and defendants' agents,
servants, employees, attorneys, and all other persons in active concert or privity or in
participation with them, be enjoined from directly or indirectly infringing plaintiff's copyrights in
the subject Musical Compositions, or continuing to market, offer, sell, dispose of, license,
lease, transfer, display, advertise, reproduce, develop, or manufacture any works derived or
copied from the subject Musical Compositions or to participate or assist in any such activity.
4. The defendants, the corporate directors and officers, and defendants agents,
servants, employees, attorneys and all other persons in active concert or privity or in
participation with them, be enjoined to return to plaintiff any and all masters, originals, copies,
facsimiles or duplicates of the subject Musical Compositions, or either of them, in their
possession, custody or control.
5. That defendants, the corporate directors and officers, and defendants agents,
servants, employees, attorneys and all other persons in active concert or privity or in
par1icipation with them, be enjoined to recall from all users, customers or clients, any originals,
copies, facsimiles, or duplicates of any works shown by the evidence to infringe any copyright
in the subject Musical Compositions.
6. That judgment be entered for plaintiff and against defendants for plaintiff's actual
damages according to proof, and for additional profits attributable to infringements of plaintiff's
copyrights, in accordance with proof.
7. That judgment be entered for plaintiff against defendants for statutory damages
based upon defendants acts of infringement. pursuant to the Copyright Act of 1976 and 17
U.S.C. §101 et. seq. and for all damages available under California Civil Code Section 980.
~ .
COMPLAINT
24
8. That defendants be required to supply to plaintiff an accounting of a!J gains, profits
and advantages derived by defendants from their acts of infringement or other violations of law
deemed to be held in constructive trust for the benefit of plaintiff.
9. That defendants be held to have damaged plaintiff's reputation in the music industry
and that Plaintiff recover for emotional distress.
10. That plaintiff be awarded punitive and exemplary damages in the sum of 20% of
the defendants financial gain from all sources since the inception of Napster, Inc. until October
30, 2000 when it partnered with BERTELSMANN and from October 30, 2000 to until such time
as the accounting is finally completed, in an amount subject to proof at the time of trial.
11. That Plaintiff have Judgment against the defendants for plaintiff's costs and
attorney fees.
CLAIMS FOR UNFAIR COMPETITION
1. The defendants be held to have committed unfair competition against plaintiff.
2. That defendants, the corporate directors and officers, and defendants agents,
servants, employees, attorneys, and all other persons in active concert or privity or in
participation with them, be enjoined from continuing any and all acts of unfair competition as
herein alleged.
3. That defendants be required to account to plaintiff for any and all profits derived by
defendants from the sale of goods and products and for all the damages sustained by plaintiff
by reason of said acts of infringement, and unfair competition complained of herein.
4. That Plaintiff be awarded statutory damages for each act of infringement, which
darT:Jages are estimated to be in excess of $10,000,000.
5. That plaintiff be awarded punitive and exemplary damages in the sum of 20% of the
defendants financial gain from all sources since the inception of Napster Inc. until its
partnership with BERTELSMANN on October 30, 2000 and from October 30, 2000 until such
time as an accounting is provided, in an amount subject to proof at the time of trial.
*,0
COMPLAINT
25
INTERFERENCE WITH ECONOMIC ADVANTAGE
.
1. That Plain1iff be awarded compensatory damages in an amount subject to proof at
the time of trial.
2. That Plaintiff be awarded punitive and exemplary damages in the sum of ~
$10,000,000.
3. For an order requiring defendants, and each of them, to show cause, if indeed such
exists, why 1hey should not be enjoined during the pendency of this action.
4. For a temporary restraining order, a preliminary injunction, a permanent injunction,
all enjoining defendants from continuing to disrupt plaintiff business relations by distributing
Plaintiff's music.
ACCOUNTING
1. An accounting be made of all BERTELSMANN and Napster user identification
information, each musical composition downloaded by each user, the date each such musical
composition was downloaded from Napster by each user.
2. An accounting of all financial gain from BERTELSMANN and Napster, Inc., both
gross and net, from its illegal piracy of musical compositions from the time of the company's
inception until the time the actual accounting is provided.
INDEMNIFICA TIO~
1, That Plaintiff be awarded compensatory damages from the defendants in an amount
5ubject to proof at the time of trial.
2. That Plaintiff be awarded Punitive and Exemplary Damages against Napster, Inc.,
3ertelsmann eCommerce Group, and all other defendants in a sum of20% ofall private investment
;apital and revenues from whatever source, including, but not limited to, advertisers, promoters,
;ales, user fees goodwill and all other financial benefits from the defendants, subject to proof at the
ime of trial.
COMPLAINT
26
DECLARATORY RELIEF
~- 1. A declaration of the court that Defendant Bertelsmann eCommerce Group as the
partner, and majority shareholder of Napster, Inc., is jointly and severally liable with all other
defendants for the actions of Napster, Inc.
COMMON TO ALL CAUSES OF ACTION
1. For reasonable attorney fees;
2. For actual costs;
3. For such other and further relief as the Court may deem just and proper.
Dated: November 13, 2000 ,
7 71~ k:::\
/ ,.. , I'
MAfTH~~'KATZ"--
Plaintiff in Pro Per



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