Plaintiff, v. Civil Action No. / : (0 C V · Cvent Supplier Network ("CSN"). The CSN includes...

FILED

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

" 20!0 MAY 10 P 14:3,

CVENT, INC.

8180 Greensboro Drive

McLean, VA 22102,

Plaintiff,

v.

EVENTBRITE, INC.

410 Townsend Street

San Francisco, CA 94107

and DOES 1-10, individuals and/or business

entities of unknown nature,

Defendants.

CLERK US 0!5T?.!O ALEXANDRIA. Vi

Civil Action No. / : (0 C V

PLAINTIFF CVENT, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN

SUPPORT OF ITS MOTION FOR TEMPORARY RESTRAINING ORDER AND

PRELIMINARY INJUNCTION

(Filed concurrently with Declarations of Charles Ghoorah, Eric Eden, and

Jeffrey Yestrumskas in support thereof)

Respectfully submitted,

AEGIS LAW GROUP LLP

Paul C. Rauser (application for admission pro hac

vice pending)

Oliver Garcia (Va Bar No. 70087)

Thomas Shakow (Va Bar No. 70291) (application

for admission pending)

901 F Street, N.W., Suite 500

Washington, D.C. 20004

Tel: (202) 737-3500/Fax: (202) 737-3330

email: ogarcia(5),aegislawgroup.com

Dated: May 10,2010

Attorneys for Plaintiff Cvent, Inc.

Case 1:10-cv-00481-LMB-IDD Document 6 Filed 05/10/10 of 41

TABLE OF CONTENTS

PRELIMINARY STATEMENT 1

I. INTRODUCTION 1

II. SUMMARY OF FACTS 2

A. CVENT AND ITS WEBSITE 2

B. DEFENDANTS' WRONGFUL CONDUCT 6

1. Evidence of Wholesale "Scraping" of Cvent's Website 7

2. Evidence of Illegally Copied Materials on Eventbrite's Website 9

a. Illegal Copying and Redistribution of the Cvent Supplier Network 9

b. Illegal Copying and Redistribution of the Cvent Destination Guide ..10

C. THE HARM CAUSED BY DEFENDANTS' WRONGFUL CONDUCT 13

ARGUMENT 15

I. LEGAL STANDARD FOR A TEMPORARY RESTRAINING ORDER AND

PRELIMINARY INJUNCTION 15

II. CVENT IS LIKELY TO SUCCEED ON THE MERITS OF ITS CLAIMS FOR

INJUNCTIVE RELIEF 16

A. Cvent Is Likely To Succeed on the Merits of Its Copyright Infringement Claim 16

B. Cvent Is Likely To Succeed on the Merits of Its Computer Fraud and Abuse

Act Claim 19

C. Cvent Is Likely To Succeed on the Merits of Its Lanham Act "Reverse

Passing Off' Claim 22

D. Cvent Is Likely To Succeed on the Merits of Its Breach Of Contract Claim 24

1. Defendants Have Breached a Terms of Use Contract Governed by the

Virginia Uniform Computer Information Transactions Act 24

2. Defendants Have Breached the Terms of Use Contract Under the Common Law 28

III. CVENT WILL SUFFER IRREPARABLE HARM IF INJUNCTIVE RELIEF

DOES NOT ISSUE 29


IV THE BALANCE OF EQUITIES TILTS SHARPLY IN CVENT'S FAVOR 31

V. INJUNCTIVE RELIEF IS IN THE PUBLIC INTEREST 32

CONCLUSION 33

in


TABLE OF AUTHORITIES

CASES

A&MRecords v. Napster, 239 F.3d 1004 (9th Cir. 2001) 17

Adobe Systems, Inc. v. Brenengen, 928 F. Supp. 616 (E.D.N.C. 1996) 32

Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3rd Cir. 1983), cert.

denied, 464 U.S. 1033, 104 S.Ct. 690 (1984) 30

Arrow United Indus., Inc. v. Hugh Richards, Inc., 678 F.2d 410 (2d Cir. 1982) 23

Candle Factory, Inc. v. Trade Associates Group, Ltd., 23 Fed. Appx. 134 (4th Cir. 2001) 32

CoStar Group, Inc. v. LoopNet, Inc., 164 F. Supp. 2d 688 (D.Md. 2001), aff'd, 373 F.3d

544 (4th Cir. 2004) lg_19

Creative Computing v. Getloaded.com, LLC, 386 F.3d 930 (9th Cir. 2004) 20, 22

Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) 23

EF Cultural Travel BVv. Explorica, Inc., 274 F.3d 577 (1st Cir. 2001) 22

EF Cultural Travel BVv. Zefer Corp., 318 F.3d 58 (1st Cir. 2003) 20-21

Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004) 17-18

EMI April Music, Inc. v. White, 618 F. Supp. 2d 497 (E.D. Va. 2009) 32

Filak v. George, 594 S.E.2d 610 (Va. 2004) 28

In re America Online, Inc., 168 F. Supp. 2d 1359 (S.D. Fla. 2001) 20

In re Microsoft Corporation Antitrust Litigation, 333 F.3d 517 (4th Cir. 2003) 18

Integrative Nutrition, Inc. v. Academy of Healing Nutrition, 476 F. Supp. 2d 291 (S.D.N.Y. 2007) 16

LGS Architects, Inc. v. Concordia Homes of Nevada, 434 F.3d 1150 (9th Cir. 2006) 18

Lorillard Tobacco Co. v.S& MBrands, Inc., 616 F. Supp. 2d 581 (E.D. Va. 2009) 33

MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993) 17

Metro-Goldwyn-Mayer Studios, Inc. v. Groksler, Ltd., 545 U.S. 913 (2005) 17

Moore v. Kempthorne, 464 F. Supp. 2d 519 (E.D. Va. 2006) 15

IV


Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d

546 (4th Cir. 1994) 16

PBM Products, LLC v. Mead Johnson & Co., No. 3:09-CV-269, 2010 WL 957756

(E.D. Va. March 12, 2010) 33

Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007) 17

Physicians Interactive v. Lathian Systems, Inc., No. CA 03-1193-A, 2003 WL 23018270

(E.D. Va. Dec. 5, 2003) 20-21, 33

Positive Software Solutions, Inc. v. New Century Mortgage Corp., 259 F. Supp. 2d 531

(N.D. Tex. 2003) 19,30

Quantum Systems Integrators, Inc. v. Sprint Nextel Corp., 338 Fed. Appx. 329 (4th Cir

2009) 17

Register.com v. Verio, Inc., 126 F. Supp. 2d 238 (S.D.N.Y. 2000), aff'd 356 F.3d 393

(2d Cir. 2004) [ 20-22,27-30

Roho, Inc. v. Marquis, 902 F.2d 356 (5th Cir. 1990) 23

Service & Training, Inc. v. Data General Corp., 963 F.2d 680 (4th Cir. 1992) 17, 30, 33

Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) 33

Sun Microsystems. Inc. v. Microsoft Corp., 188 F.3d 1115 (9th Cir. 1999) 18

Tao of Systems Integration, Inc. v. Analytical Services & Materials, Inc., 299 F. Supp. 2d

565 (E.D. Va. 2004) 23

The Real Truth About Obama, Inc. v. Federal Election Commission, 575 F.3d 342 (4th Cir.

2009), cert, granted on other grounds, 2010 WL 1641299 (April 26, 2010) 15

Ticketmaster Corp. v. Tickets.com, Inc., No. CV99-7654-HLH(BVKx), 2003 WL

21406289 (CD. Cal. March 7, 2003) 28-29

Trandes Corp. v. Atkinson Co., 996 F.2d 655 (4th Cir. 1993) 16

Tyco Int'llnc. v. John Does, 2003 WL 21638205 (S.D.N.Y. July 11,2003) 22

Uhlig, LLC v. Shirley, No. 6:08-1208-HHF-WMC, 2008 WL 3057290 (D S C Aug 5 2008) _ ' 33


Universal Furniture International, Inc. v. Collezione Europa USA, Inc.,

No. 1:04CV00977,2007 WL 2712926 (M.D.N.C. Sept. 14, 2007), aff'd, 196 Fed.

Appx. 166 (4th Cir. 2006) 23, 30

Value Group, Inc. v. Mendham Lake Estates, L.P., 800 F. Supp 1228 (D.N.J. 1992) 32

Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365 (2008) 15

STATUTES

15 U.S.C. § 1116 15

15 U.S.C. § 1125 15, 23

17 U.S.C. § 106 17

17 U.S.C. § 410 17

17 U.S.C. § 501 l5j 19

17 U.S.C. § 502 15

18 U.S.C. § 1030 15) i9_22

Va. Code Ann. § 59.1-501 et seq 24-27

Va. Code Ann. § 59.1-506.18 16, 28, 33

Va. Code Ann. § 59.1-508.15 l6j 33

VI


PRELIMINARY STATEMENT

I. INTRODUCTION.

This is a simple case of intellectual property theft. Since August 2008,

Defendants have illegally and without authorization used "web scraping" techniques to steal

valuable proprietary content from thousands of pages of Plaintiff Cvent, Inc.'s ("Cvent's")

cvent.com website and distributed that valuable content on eventbrite.com, a website owned and

managed by Cvent's competitor, Eventbrite, Inc. ("Eventbrite"). Defendants have infringed

Cvent's copyrights; they have violated Federal and Virginia criminal law through their

unauthorized and illegal access to Cvent's protected computer network; they have violated

Federal unfair competition law through their "reverse passing off' of Cvent's products as

products of Defendant Eventbrite; they have engaged in an unlawful business conspiracy in

violation of Virginia statutory and common law; and they have breached binding Terms of Use

of the cvent.com website.

Defendants' illegal conduct continues to this day. It has harmed and continues to

irreparably harm Cvent, by lowering the relative value of Cvent's product in the marketplace and

diverting search-engine-based website traffic away from Cvent's site to Eventbrite's. Each day

that Eventbrite continues to pass off Cvent's intellectual property as its own, Cvent suffers from

unfair competition and loses goodwill among its potential customer base, causing irreparable

damage. Cvent, through this motion, seeks to immediately stop Defendants from continuing that

illegal and injurious conduct.

In September and October 2008, Defendant Eventbrite and persons acting in

concert with it used automated computer programs to access thousands of web pages on Cvent's

website, and to copy Cvent's proprietary content on more than 1600 venues and 61 cities.

Eventbrite then redistributed the information it had "scraped" from Cvent's website through its


own website, branding that stolen content as Eventbrite's own.

II. SUMMARY OF FACTS.

A. Cvent and its Website.

Plaintiff Cvent, Inc. ("Cvent") is a Virginia-based software company which,

among its other business lines, licenses web-hosted software for use by companies and their

meeting planners at "http://www.cvent.com" (the "Cvent website"). See Ghoorah Decl. 12;

Eden Decl. ̂ 2.1 Cvent is the owner and operator of the Cvent website; it created the website for

customers who want to use the internet to organize large-scale events efficiently and

economically. See Eden Decl. 12; Ghoorah Decl. ̂ 4.

Cvent's software's facilitates such tasks as meeting site selection, online event

registration, event management, event website creation, and the conduct of web surveys. Each

year, Cvent helps tens of thousands of planners around the world manage hundreds of thousands

of events. See Ghoorah Decl. ̂ 3.

Cvent derives revenue by, among other things: processing event-related online

payments; managing event registrations and survey responses; selling advertising to hotels, other

venues, and destination marketing organizations; and selling other event planning services

("software-as-a-service") to customers. The substantial majority of Cvent's revenue is derived

from internet-driven transactions. See Ghoorah Decl. ̂ 6; Eden Decl. f 3.

To attract customers to the cvent.com website, Cvent has created a database of

about 100,000 hotels, conference centers, and special meeting venues around the world called the

Cvent Supplier Network ("CSN"). The CSN includes detailed information about each venue,

In support of this Motion, Cvent submits the Declarations of Charles Ghoorah ("Ghoorah

Decl."), Eric Eden ("Eden Decl."), and Jeffrey Yestrumskas ("Yestrumskas Decl."), attached as Annexes A, B, and C, respectively, to this Memorandum. These Declarations are incorporated herein by reference.


including images, descriptions, the availability and capacity of meeting rooms, venue amenities

and services, and other information. See Ghoorah Decl. If 7; Eden Decl. ̂ 4.

Since the company's founding, Cvent has invested over $10 million in

researching, building, maintaining, and promoting the venue profiles in the CSN. See Ghoorah

Decl. If 9. Cvent's staff have traveled around the country and met with thousands of hotel

operators to discuss how their venues should be listed in the Cvent Supplier Network. Cvent, in

consultation with venues, made deliberate and painstaking decisions on how to label and display

information in a way meaningful to planners. See id. If 10.

Cvent has continuously updated and improved the CSN at considerable cost,

incurring more than $3.5 million on the offering in 2009 alone. Over 175 full-time employees of

Cvent are employed in maintaining, developing, programming, operating, and marketing the

CSN. Because venues may change an array of aspects (including name, ownership, capacity,

construction or facilities), many of these employees are charged with researching venues and

updating the Cvent website so that Cvent website users are accurately informed. See id. U 11.

The CSN has been - and continues to be - a key differentiator between Cvent and

its competitors, and an important competitive advantage of Cvent in the marketplace. The CSN is

the most comprehensive resource of global meeting venues in the industry. Through the CSN,

for instance, meeting planners can sign up for an account to send electronic Requests for

Proposals to venues for information on group meeting pricing and availability. Hotels and other

venues buy advertising and marketing packages from Cvent in large part based on how many

inquiries they receive through Cvent's website. See id. f 12.

As part of the CSN, and in complement to the existing CSN features, Cvent began

in 2007 to develop its "Destination Guide," a new informational resource of city-specific profiles


designed especially for meeting and event planners, enabling planners to focus their site selection

and event sourcing efforts by comparing meeting-specific details across cities worldwide. The

Cvent Destination Guide is something that Cvent has paid about $500,000 to develop over the

last three years. See id. f 13; Eden Decl. f5. Cvent employs one manager, one editor, seven

web designers, two full-time marketing employees, and a team of freelance writers who are

charged with writing and updating the editorial content of the Destination Guide. Over the past

three years, Cvent has invested about $300,000 in direct marketing costs specifically to advertise

the Destination Guide and build brand awareness. See Ghoorah Decl. H 14; Eden Decl. f 6.

The Destination Guide offers, among other things, a list of featured,

recommended venues in each profiled city. For example, where the CSN contains data on over

1500 different venues in and around Washington, D.C., the Destination Guide features 28

selected venues. See Ghoorah Decl U 15.

Cvent obtains competitive advantage by presenting its meeting planner customers

with targeted, useful, and accurate information in an easy-to-use web-based interface. To that

end, the Cvent website, including the CSN and its Destination Guide, are, by design, uniquely

distinctive in their presentation, composition, and content. See id, 117.

The Cvent website contains and has contained, throughout the period in question,

statements at the bottom of each web page notifying anyone viewing the website that the

material on the website is copyrighted. See Ghoorah Decl. U 19; Eden Decl. U 12. Cvent has

obtained copyright registrations for multiple iterations of its website and portions thereof,

including registrations for its home page and all venue information pages. See Ghoorah Decl.

f 20; Eden Decl. U 12.

The proprietary and copyrighted content on the Cvent website includes, but is not


limited to, the following: (A) information on meeting spaces and venues reflected in the CSN,

which requires constant research and updating by employees of Cvent; (B) the detailed, unique

venue descriptions created by employees of Cvent for the CSN; and (C) the Destination Guide,

highlighting preferred venues determined by employees of Cvent. See Ghoorah Decl. f21; Eden

Decl. U 15.

At all times relevant to this case, Cvent's main cvent.com web page, all web

pages generated by CSN's searching and browsing features, and all Destination Guide web pages

have provided permanent links to the Terms of Use. These links are in close proximity to the

web pages' CSN searching and browsing features, and to the web pages' presentation of CSN

content, including the Destination Guide. The terms of the TOUs are readily available for

review via the links in both HTML and Adobe Acrobat .PDF forms. See Eden Decl. ̂ 9.2

Customers generally must first visit cvent.com's home page, and then navigate through a

series of web pages, to view the CSN's venue descriptions. Customers navigate through those

pages by clicking on designated hypertext "links" located on each of those pages, culminating in

a venue information page. Viewing any Cvent web page causes electronic copies of each of

those pages to be created and to appear on a user's computer screen. See Eden Decl. H 7.


During the period from June 2008 through March 2009, the Terms of Use

included the following terms relevant to this action:

"You shall not reverse engineer, disassemble or decompile the

Services or cause or permit the reverse engineering, disassembly or

decompilation of the Services."

"All users agree not to disclose to anyone Cvent's trade secrets and

that you will not use any of the information available on Cvent's

web site to compete against Cvent or reverse engineer our product

offerings."

"No competitors or future competitors are permitted access to our

site or information, and any such access by third parties is

unauthorized. You agree that you will not copy, record, publish,

compile, reproduce, republish, use or resell for any competing

commercial purpose any information on our site."

"You acknowledge that Cvent or its licensors retain all copyright,

trademark, trade secret, patent, and other proprietary and

intellectual property rights to the [Cvent Supplier Network]

Services..."

"All users of Cvent Services and visitors to the Cvent websites

agree not to use any manual or automated means (of any type) to

capture or extract data in bulk from Cvent's websites."

"You agree to not use any device, software or routine that may

extract, copy, modify, import, export, replicate, scrape or otherwise

deliver, in any manner, the data and information on our site to you

or anyone else. If you do so, then you agree that Cvent is suffering

irreparable injury and that an injunction or temporary restraining

order may be entered by any court sitting in the state of Virginia

prohibiting the use of such information ..."

See Eden Decl. fll.

B. Defendants' Wrongful Conduct

Cvent has recently discovered that Eventbrite, a Delaware corporation based in

California, used automated computer programs to access Cvent's website and copy thousands of

Cvent's venue information pages. Cvent has learned that the www.eventbrite.com website (the

"Eventbrite website") contains proprietary Cvent website content taken directly from the Cvent


website, including: (A) collected data on meeting spaces and venues reflected in the CSN; (B)

venue descriptions created by employees of Cvent for the CSN; and (C) lists of highlighted

venues from the Destination Guide. See Eden Decl. ffl| 17-18; Yestrumskas Decl. fl[ 15-35.

1. Evidence of Wholesale "Scraping" of Cvent's Website.

Recently, Cvent staff conducting Google searches related to Cvent's business

noticed that search results showed that Eventbrite's website contained some content identical to

content on Cvent's website. Shortly thereafter, Cvent staff initiated a forensic review, including

a review of Cvent's web access logs3, in an effort to determine how this content may have been

collected from Cvent's site. Cvent also quickly launched a further forensic analysis, which

continued through late April 2010, to determine the participants in the intrusions, the extent of

the intrusions, and the extent to which the intrusions were ongoing. See Yestrumskas Decl. flf 4-

8.

Cvent staff discovered that computers operating from or through the host IP

address 67.225.179.162 accessed cvent.com on five occasions in September and October 2008.4

Most notably, these visits included the following:

• On September 21, 2008, a computer operating from or through 67.225.179.162 with

the web browser user agent of "lwp-trivial/5.810" accessed pages for 61 destinations

Cvent's web access logs are databases containing information on visits to cvent com Each visitor to a website is identified by a "Host IP Address" which shows, among other things what internet service provider the visitor is using as an intermediary to visit the website Each visitor also communicates, inter alia, a "web browser user agent" to the website's server That "web browser user agent" tells the server what sort of program is being used to access the website. Cvent's logs contain this visitor information. See Yestrumskas Decl. ̂ 5.

According to the WHOIS registry of internet addresses, IP address 67.225.179 162 is owned by Liquid Web, a computer hosting company with its website at liquidweb.com. Liquid Web, which is physically based in Lansing, Michigan, registered the IP space in which 67.255.179.162 resides on November 26,2007; Liquid Web is also the current registrant See Yestrumskas Decl. f5


in the Destination Guide. In total 266 pages were visited by this visitor on September

21,2008.

• On the afternoon of October 2, 2008, over the course of 13 minutes, a computer

operating from or through 67.225.179.162 using the web browser user agent

"LWP::Simple/5.814" accessed 4,890 pages on Cvent's site.

• On the afternoon of October 3, 2008, over the course of 28 minutes, a computer

operating from or through 67.225.179.162 using the web browser user agent

"LWP::Simple/5.814" accessed 4,598 pages on Cvent's site.

See id. f 9.

Over the 41 minutes of the computer's visits on October 2 and 3,2008, it

downloaded the CSN's venue information for 1,613 venues. The 1,613 venues downloaded

correspond to the venues featured in the Destination Guide for the 61 cities visited on September

21,2008. See id. U 10.

The web browser user agents used by the computer - "lwp-trivial/5.810" and

"LWP::Simple/5.814" - appear to be automated website data retrieval (or web crawling)

programs. These user agents are known to be affiliated with so-called "bot" or "robot"

programs, written in the Perl scripting language, which allow automatic, systematic download

and copying of websites. The use of programs presenting these user agent strings is not

consistent with normal use of a web browser by a human operator. See id. K 14.


2. Evidence of Illegally Copied Materials on Eventbrite's Website.

Before October 2008, Eventbrite had little or no venue information on its website

comparable to the CSN or Destination Guide. In December 2008, Eventbrite launched its

"venues directory", which consisted and consists almost entirely of copyright-protected and

proprietary material from Cvent's website which has been minimally reformatted to make it

appear to be Eventbrite content. See id. If 18.

a. Illegal Copying and Redistribution of the Cvent Supplier Network.

The information contained in Eventbrite's venue information pages is a wholesale

copy, marginally reformatted, of the information from Cvent's CSN pages. The 1,613 venue

profiles scraped from Cvent's website appear to have been simply reformatted and reposted on

Eventbrite's website. See id. fflj 23-27. Attached as Exhibits 2 and 3 to the Yestrumskas

Declaration are copies of Cvent's and Eventbrite's CSN venue profile pages for five venues:

Wildfire restaurant in Chicago; Gotham Bar and Grill in New York City; Duvet Restaurant and

Lounge in New York City; Broussard's restaurant in New Orleans; and the Van Dyke Cafe in

Miami Beach. Both sets of pages were printed on May 2, 2010; the Cvent pages have not

substantially changed since August 2008. The information on Eventbrite's pages matches

Cvent's profiles word for word. See id. fflf 24-25.

Tellingly, Eventbrite's venue profiles include typographical and other errors

which copy errors originally present only on Cvent's website. A few specific instances make it

clear the similarities between Eventbrite's website pages and Cvent's are not due to innocent

coincidence, but rather stem from direct, illegal copying of Cvent content by the Defendants.

Attached as Exhibits 4 and 5 to the Yestrumskas Declaration are copies of Cvent's CSN venue

profile pages for four more venues, and Eventbrite's venue profile pages for the same venues.


The pages were printed on April 12, 2010, though Cvent's pages had not substantially changed

since August 2008. The exhibits show that in each instance, Eventbrite has copied errors

contained only on Cvent's website:

• The Brewer's Art (Baltimore). Cvent mistakenly included the same paragraph in the venue description twice. Eventbrite's website replicates this mistake.

• Pochron Studios (Brooklyn). Multiple pieces of information for this profile in Cvent's page were incorrectly entered by Cvent (including address and rental space information). In October 2009, Cvent removed the link to this page on its website at the venue's request.5 Eventbrite's website, however, carries the same erroneous information as in Cvent's old page.

• Sydney Intercontinental Hotel. A bug in Cvent's system erroneously populated the address field with the notation "(AUS)". Eventbrite's page replicates this error.

• Corus Hotel Hyde Park (London). Cvent entered "LND" in the state field, though "LND" is not part of the venue's address. Eventbrite's website replicates this postal address error.

See id. 126. These copied errors only serve as a small illustration of the indiscriminate

redistribution of copied material by Eventbrite, which covered all 1,613 of the pages that

Defendants' automated program scraped in October 2008. See id. 127.

b. Illegal Copying and Redistribution of the Cvent Destination Guide.

Eventbrite.com's venue guide contains complete, one-to-one matches of the

venue lists for dozens of cities in Cvent's Destination Guide as that Guide appeared in

September and October 2008. See id. ffl 29-35.

Attached as Exhibit 6 to the Yestrumskas Declaration are copies of five pages of

the Cvent Destination Guide for medium-sized cities from the cvent.com website, as that site

existed on March 22, 2010. The pages shown are those of: Atlantic City, New Jersey; Calgary,

Alberta; Charlotte, North Carolina; Reno, Nevada; and Scottsdale, Arizona. The venue lists on

5

Cvent's copy was printed from the page file as it existed at the time it was removed from public view.

10


these Cvent pages have not been changed since August 2008. Attached as Exhibit 7 to the

Yestrumskas Declaration are copies of pages for the same cities, but from Eventbrite's website,

as that site existed on March 22, 2010. See id. 1J 30.

These cities are each home to hundreds if not thousands of venues. Of these many

venues, Cvent profiled only a subset in formulating the CSN, and Cvent chose only a subset of

its profiled venues to be featured in the Destination Guide:

• in Atlantic City, of 88 hotels, 38 restaurants, and 20 other venues profiled in the CSN, the Cvent Destination Guide features ten hotels, seven restaurants, and three other venues;

• in Calgary, of 67 hotels, 20 restaurants, and 54 other venues profiled, the Cvent Destination Guide features ten hotels, twelve restaurants, and eleven other venues;

• in Charlotte, of 133 hotels, 65 restaurants, and 53 other venues profiled, the Cvent Destination Guide features ten hotels, nine restaurants, and seven other venues;

• in Reno, of 36 hotels, ten restaurants, and 24 other venues profiled, the Cvent Destination Guide features eight hotels, five restaurants, and three other venues;

• and in Scottsdale, of 68 hotels, 56 restaurants, and nineteen other venues profiled, the Cvent Destination Guide features fourteen hotels, thirteen restaurants, and five other venues.

See id. ^31.

For each of these cities, Eventbrite's pages, posted in or after November 2008,

contain a perfect match of the lists of venues featured in Cvent's Destination Guide. See id. 132.

Similarly, by way of example, attached as Exhibits 8 and 9 to the Yestrumskas

Declaration are copies of five big-city pages of the Cvent Destination Guide and the Eventbrite

website, as those sites existed on March 22, 2010. The venue lists on the Cvent pages have

undergone only minor changes since August 2008. The pages shown are those of Dallas,

Houston, London, Phoenix, and San Francisco, each home to thousands of venues. Of these,

11


Cvent profiled only a subset in formulating the CSN, and Cvent featured in the Destination

Guide only a subset of its profiled venues:

• in Dallas, of 759 hotels, 201 restaurants, and 55 other venues profiled the Cvent Destination Guide features only 20 hotels, nineteen restaurants' and three other venues;

• in Houston, of 587 hotels, 136 restaurants, and 22 other venues profiled, the Cvent Destination Guide features only 26 hotels, thirteen restaurants, and six other venues;

• in London, of 419 hotels, 119 restaurants, and 176 other venues profiled the Cvent Destination Guide features only fifteen hotels, four restaurants, and seven other venues;

• in Phoenix, of 566 hotels, 138 restaurants, and 21 other venues profiled, the Cvent Destination Guide features only 21 hotels, fourteen restaurants, and three other venues;

• and in San Francisco, of 613 hotels and 503 restaurants profiled, the Cvent Destination Guide features only 27 hotels and twelve restaurants.

See id. ^ 33.

Nevertheless, Eventbrite's pages, posted in or after November 2008, show a near-

100% match of the venues listed with those listed in Cvent's pages:

• For Dallas, all of the seventeen hotels and seven restaurants appearing on Eventbrite's list appear on Cvent's. (Notably, Eventbrite's list includes only those restaurants for which Cvent's page includes a hyperlink.) Eventbrite's list includes all three of Cvent's special (other) venues, adding only one.

• For Houston, Eventbrite's restaurant list includes all thirteen of the restaurants appearing on Cvent's page, and adds only two. Eventbrite's hotel list includes 23 of Cvent's selected hotels, and adds only one. Eventbrite's list of special venues includes five of Cvent's listed venues, and adds only one.

• For London, Eventbrite's restaurant list includes all four of Cvent's selected restaurants, and adds only one. All of the hotels on Eventbrite's page appear on Cvent's page. Eventbrite's special venues list includes all seven of Cvent's selected venues, and adds only two.

• For Phoenix, all of Eventbrite's venues are listed by Cvent, with only one addition.

12


• For San Francisco, 21 of the 22 hotels recommended by Eventbrite appear on

Cvent's page. Twelve of the fifteen restaurants recommended by Eventbrite appear on Cvent's page.

See id. U 34. As noted, some venues appear on Eventbrite's lists that do not appear on Cvent's.

Cvent's backup logs show these venues previously appeared on Cvent's lists, but were removed

from those lists between October 2008 and March 2010. Thus it appears that these selected

venues, just like the remaining venues on Eventbrite's website, were simply copied from Cvent.

See id. ^ 35.

The evidence is overwhelming that Defendants have copied Cvent's

painstakingly-created databases and venue selections directly from Cvent's website, and

republished the copied materials for their own benefit at eventbrite.com.

C. The Harm Caused by Defendants' Unlawful Conduct.

Eventbrite's copying of Cvent's website for commercial purposes is irreparably

harming Cvent in at least three ways.

First, Eventbrite's misconduct causes Cvent to lose web traffic that is the

lifeblood of its business. As is true of any internet-based business, a substantial portion of

Cvent's initial customer traffic is driven by search engines. Thirty-eight percent of Cvent's total

web site traffic is search-driven; most (about three-fourths) of this is driven by the Google web

search engine. Many of the copied pages on Eventbrite's website have been indexed by Google,

meaning that Eventbrite receives traffic to its website because its pages contain the copied

material. See Eden Decl. ̂ 27.

Eventbrite stands to gain from this traffic because on every page, Eventbrite

allows searchers to sign up for a free account or contact Eventbrite. By using Cvent content

these pages to attract event management clients, Eventbrite is using Cvent's own intellectual

property to take event management business away from Cvent. See Eden Decl. ̂ 28.

13

on


Losing transaction volume also impacts Cvent's ability to sell advertising to

hotels, other venues, and destination marketing groups. When planners find venues through

Eventbrite, and contact venues directly, Cvent is not credited with the referrals, and it loses

advertising revenue accordingly. Because customers Eventbrite gains in this way may be

maintained by Eventbrite - and lost to Cvent - for years in the future, quantifying the scope of

the damage is an impossible task. See Eden Decl. If 29; Ghoorah Decl. f 12.

Second, Cvent has been forced to reassign its technical personnel from productive

development tasks that would improve the functionality of its website to technical measures to

mitigate the harm caused by these automated invasions, as well as to discover who is invading its

computer systems. It is impossible for Cvent to precisely calculate the costs it has incurred

through these efforts, but it easily amounts to much more than $5,000, and likely many times

that. See Ghoorah Decl. fl 26.

Third, Eventbrite's reuse of Cvent materials generally diminishes the value of

Cvent's unique creations, the CSN and Destination Guide. Both of these resources were

compiled at considerable expense of time and resources. Both add tremendous value to the

customer goodwill Cvent enjoys. Both enhance Cvent's relative position in the market of event

organization professionals. Eventbrite's unlawful appropriation and replication of these

resources irreparably diminishes Cvent's hard-earned reputation as long as the misuse of the

materials is allowed to continue. See Eden Decl. \ 31.

Cvent will continue to suffer these harms as long as Eventbrite is permitted to use

Cvent's materials on its (Eventbrite's) own website. Further, the public will suffer, as copyright,

computer protection, and other laws go unenforced, unless this Court orders Eventbrite to stop its

misconduct.

14


ARGUMENT

I. LEGAL STANDARD FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION.

This Court may enter a preliminary injunction when a movant can show "[1] that

he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence

of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is

in the public interest." Winter v. Natural Resources Defense Council. Inc., 129 S.Ct. 365, 374

(2008); see also The Real Truth About Ohama. Inc. v. Federal Election Commission. 575 F.3d

342, 346 (4th Cir. 2009) (quotim Winter^ cert, granted on other grounds, 2010 WL 1641299

(April 26, 2010). The standard for granting a temporary restraining order is the same as that for

granting a preliminary injunction. See Moore v. Kempthorne, 464 F. Supp. 2d 519, 525 (E.D.

Va. 2006).

Cvent respectfully suggests that Eventbrite's conduct, and the irreparable harms

resulting from it, warrant entry of a temporary restraining order and preliminary injunction

against Eventbrite under this test. Cvent has presented four claims for injunctive relief- for (1)

copyright infringement,6 (2) violation of the Lanham Act,7 (3) violation of the Computer Fraud

and Abuse Act,8 and (4) breach of a Terms-of-Use contract governed by Virginia's Uniform

See 17 U.S.C. § 502, which permits the Court to "grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright" As the Ghoorah Declaration demonstrates, Cvent is the owner of the copyright of the Cvent website content. Defendants have obviously copied and redistributed Cvent website content on the Eventbrite website in violation of 17 U.S.C. § 501.

See 15 U.S.C. § 1116, which grants this Court "power to grant injunctions, according to the principles of equity and upon such terms as the court may deem reasonable to prevent a violation under subsection (a)... of section 1125 of this title." o

See 18 U.S.C. § 1030(g), which provides that "[a]ny person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief."

15


Computer Information Transactions Act ("UCITA").9 As discussed below, Cvent is likely to

prevail on each of these claims, though it only need prove likely success on one to establish the

first element of the injunctive relief standard. See Multi-Channel TV Cable Co. v.

Charlottesville Quality Cable Operating Co.. 22 F.3d 546, 553 n.5 (4th Cir. 1994). Further,

Cvent is suffering irreparable harm as a result of Defendants' conduct, the balance of equities

tips sharply in Cvent's favor, and the public interest will be served by immediate injunctive

relief.

II. CVENT IS LIKELY TO SUCCEED ON THE MERITS OF ITS CLAIMS FOR INJUNCTIVE RELIEF

A. Cvent Is Likely to Succeed on the Merits of its Copyright Infringement Claim.

Cvent alleges that Defendants have infringed their copyrights in the CSN and its

Destination Guide. Compl. ffll 51-60. To succeed in this claim, Cvent need only show (1) that it

owned a valid copyright and (2) that Defendants copied original elements of Cvent's copyrighted

work. Trandes Corp. v. Atkinson Co.. 996 F.2d 655, 660 (4th Cir. 1993).

Cvent possesses valid copyrights in its website, the CSN and its Destination

Guide. "A website may constitute a work of authorship fixed in a tangible medium of

expression Copyright protection for a website may extend to both the screen displays and

the computer code for the website." Inteerative Nutrition. Inc. v. Academy of Healing Nutrition.

476 F. Supp. 2d 291, 296 (S.D.N.Y. 2007). Cvent has obtained copyright registrations in its

See Va. Code Ann. § 59.1-508.15, which provides that "in a judicial proceeding, the court may enjoin a licensee in breach of contract from continued use of the information and

informational rights and may order the licensor or a judicial officer to take the steps described in § 59.1-506.18 A party has a right to an expedited judicial hearing on a request for prejudgment relief to enforce or protect its rights under this section"; see also Va. Code Ann. § 59.1-506.18(d) (providing for injunctive relief).

16


website and its underlying database, Ghoorah Decl. 120, and this establishes its copyright

ownership. See 17 U.S.C. § 410(c); Service & Training. Inc. v. Data General Cnrp 963 F.2d

680, 688 (4th Cir. 1992) (copyright registration constitutes "prima facie evidence of the validity

of the copyright").

Each "viewing" of a page from the Cvent website by Defendants causes a copy of

that page to be downloaded from Cvent's computers onto the viewer's computer system, an

action that will violate the exclusive reproduction right granted in 17 U.S.C. § 106(1) if

unauthorized. See Quantum Systems Integrators. Inc. v. Sprint Nextel Corp.. 338 Fed. Appx.

329, 336-37 (4th Cir. 2009) (holding copies in a computer's random access memory sufficiently

fixed for purposes of copyright infringement); Perfect 10. Inc. v. Amazon.cnm1 Inr. 487 F.3d

701, 716 (9th Cir. 2007) (noting that "[t]he image stored in the computer is the 'copy' of the

work for purposes of copyright law"); MAI Systems Corp. v. Peak Computer. Inc 991 F.2d 511,

517-18 (9th Cir. 1993) (computer made an unauthorized "copy" of a software program when it

downloaded the program from another computer onto its own without the permission of the

copyright owner).10

Indeed, recent decisions have extensively addressed secondary liability for copyright infringement caused by internet companies who encourage unauthorized downloads of copyrighted works specifically because using the internet to download a work from one computer to another creates a copy of that work under copyright law. See, e.g., Metro-Goldwvn-Mayer Studios, Inc. v. Grokster, T.td, 545 U.S. 913, 921, 923, 929 (2005) (instances of peer-to-peer "sharing" of digital files "are acts of infringement" when the files contain copyrighted works; such copying is so easy and widespread it "is fostering disdain for copyright protection")-Ellison v. Robertson, 357 F.3d 1072, 1074-75, 1077-78 (9th Cir. 2004) (posting digital files of stones on peer-to-peer file sharing network is direct copyright infringement that supports

contributory infringement claim); A&M Records v. Napster. 239 F.3d 1004, 1014 (9th Cir. 2001) ("Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights"). That is, of course, what Defendants have done here, and in addition to its claim of direct copyright infringement, plaintiff Cvent has asserted a claim for contributory copyright infringement.

17


Here, Cvent has granted an express non-exclusive license to cvent.com users to

copy pages from its website in compliance with its Terms of Use. See Eden Decl. U 23.

Eventbrite's automated copying from Cvent's website for commercial purposes violates those

Terms of Use, exceeds the scope of that license, and therefore constitutes direct copyright

infringement. See In re Microsoft Corporation Antitrust Litipatinn 333 F.3d 517, 534-36 (4th

Cir. 2003) (affirming injunction to prevent infringing use of materials beyond scope of license);

CoStar Group, Inc. v. LoopNet, Inc., 164 F. Supp. 2d 688,698 (D.Md. 2001) affd, 373 F.3d 544

(4th Cir. 2004) ("exceeding the scope of a license constitutes copyright infringement"); see also

LGS Architects. Inc. v. Concordia Homes of Nevada, 434 F.3d 1150, 1156 (9th Cir. 2006)

("[w]hen a licensee exceeds the scope of the license granted by the copyright holder, the licensee

is liable for infringement"); Sun Microsystems. Inc. v. Microsoft Corp.. 188 F.3d 1115, 1121

(9th Cir. 1999) (if "the licensee acts outside the scope" of the license, "the licensor can bring an

action for copyright infringement").

Using bots and other automated devices to infringe Cvent's copyright in its

website further exposes Defendants to liability for contributory infringement and inducing

copyright infringement by others. Contributory infringement liability attaches where "one who,

with knowledge of the infringing activity, induces, causes or materially contributes to the

infringing conduct of another." Ellison v. Robertson 357 F.3d at 1076. Here, at a minimum,

Defendant Eventbrite knows that the use of bots or other automated devices by Does 1-10

materially contributed to the copying ofCvent.com pages for commercial reuse because

Eventbrite used the copied materials itself; likewise, when Defendant Eventbrite posted Cvent's

stolen content on Eventbrite's website, it knew that it was encouraging the users of that website

18


to make infringing copies. It is thus liable for contributory infringement."

Cvent is the owner of the copyright-protected and proprietary Cvent website

content that was copied and placed on Defendants' Eventbrite website. Defendants' use of the

Cvent materials is a direct violation of copyright law under 17 U.S.C. § 501; to address this

violation the law provides for injunctive relief, as well as actual and statutory damages. As the

court noted in Positive Software Solutions. Inc. v. New Century Mortgage Corp., 259 F. Supp.

2d 531, 537 (N.D. Tex. 2003), where the "amount and near verbatim nature of the copying show

substantial similarity," the movant for a preliminary injunction has demonstrated a substantial

likelihood of success on the merits of its copyright infringement claim.

B. Cvent Is Likely to Succeed on the Merits of Its Computer Fraud and Abuse Act Claim.

Cvent also alleges that Defendants' actions violate the Computer Fraud and

Abuse Act (CFAA). {See 18 U.S.C. § 1030, Compl. fflj 61-67.)

The CFAA prohibits five categories of conduct related to the fraudulent or

damaging use of computers, imposing liability on anyone who "intentionally accesses a

computer without authorization or exceeds authorized access, and thereby obtains

information from any protected computer..." 18 U.S.C. § 1030(a)(2)(C); see generally id. §

1030(a)(l)-(5) (listing categories of prohibited conduct under the Act). The CFAA allows

anyone "who suffers damage or loss" through a violation of its provisions to "maintain a civil

action to obtain compensatory damages and injunctive relief or other equitable relief." 18 U.S.C.

One or more of the Defendants may also be liable for vicarious copyright infringement. Vicarious infringement liability attaches where one "has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities." CoStar Group. 373 F.3d at 549. Some Defendants may have the ability to supervise the infringing actions of others; if the Defendants having such supervisory authority have received financial benefits from the infringements, they would have vicarious infringement liability.

19


§ 1030(g). Section 1030(a)(5)(B) provides that a civil action may be triggered, inter alia, by a

loss aggregating at least $5,000 in value during a one-year period. 18 U.S.C. § 1030(a)(5)(B)(i);

Physicians Interactive v. Lathian Systems. Inc.. No. CA 03-1193-A, 2003 WL 23018270, at *6

(E.D. Va. Dec. 5, 2003); see also Creative Computing v. Getloaded.com. LLC. 386 F.3d 930,

934 (9th Cir. 2004) ("the $5000 floor applies to how much damage or loss there is to the victim

over a one-year period, not from a particular intrusion"); In re America Online. Inc.. 168 F.

Supp. 2d 1359,1372-75 (S.D. Fla. 2001) (damages to different computers may be aggregated to

compute $5000 requirement for civil CFAA claim); Register.com v. Verio. Inc.. 126 F. Supp. 2d

238, 251-52 (S.D.N.Y. 2000), off d 356 F.3d 393 (2d Cir. 2004) (strain on computer systems

caused by repeated robotic searches of website satisfied the CFAA's $5,000 damage requirement

sufficiently to support a preliminary injunction).

The CFAA provides for injunctive and other equitable relief in addition to

compensatory damages. Id § 1030(g). Courts have repeatedly affirmed the propriety of

injunctive relief against those who violate the CFAA in circumstances closely analogous to those

in the present case. See, e.g., Creative Computing. 386 F.3d at 937-38 (affirming permanent

injunction against business competitors' unauthorized access of internet website to obtain

information to unfairly complete with plaintiff under CFAA); EF Cultural Travel BV v. Zefer

Corp., 318 F.3d 58, 62-64 (1st Cir. 2003) (affirming preliminary injunction pursuant to the

CFAA to stop company from using automated "scraper" or "bot" to obtain information from

website in excess of authorized access); Reeister.com. 126 F. Supp. 2d at 252, 255 (enjoining use

of bots to repeatedly access website in violation of terms of use because such actions violated the

CFAA).

20


Plaintiff Cvent has demonstrated a likelihood of success on each element of its

CFAA claim. First, Cvent's computers are involved in interstate and foreign commerce and

communication. Ghoorah Decl. ̂ 5; Yestrumskas Decl. ̂ 12. They thus are protected computers

under 18 U.S.C. § 1030(e)(2).

Second, Defendants have intentionally accessed the computer systems on which

Cvent's website resides in excess of authorization. Most glaringly, Defendants have violated

express, specific prohibitions contained in the Terms of Use. Those terms expressly state that

"[a]ll users of Cvent Services and visitors to the Cvent websites agree not to use any manual or

automated means (of any type) to capture or extract data in bulk from Cvent's websites," and

that "[n]o competitors or future competitors are permitted access to the Cvent Supplier Network,

You agree that you will not copy, record, publish, extract, scrape, replicate, reproduce, use or

resell for any competing commercial purpose any information on our site." Eden Decl. f 11.

Defendants' violation of these Terms of Use establishes that they accessed the Cvent website

"without authorization" or "exceed[ed] authorized access" under the CFAA. See, e.g., EF

Cultural Travel BV v. Zefer Corp.. 318 F.3d at 62 ("[a] lack of authorization could be established

by an explicit statement on the website restricting access"); Recister.com. 126 F. Supp. 2d at

248, 251 (finding violation of Terms of Use to constitute exceeding authorized access). Cf.

Physicians Interactive. 2003 WL 23018270 at *6 (granting injunction, and holding use of

automated scraper likely to have exceeded authorized access, notwithstanding absence of

contrary terms of use).

Third, Defendants plainly "obtained information" from Cvent's protected

computer systems using interstate or foreign communication in violation of 18 U.S.C.

§ 1030(a)(2)(C). Yestrumskas Decl. If 12. As discussed in Preliminary Statement Section II.B.,

21


supra, Defendants' automated download of Cvent's proprietary content was massive - a

wholesale pilfering of CDN and Destination Guide content.

Fourth, and finally, Defendants' unauthorized access and copying has required

Cvent to expend the time of employed staff to investigate, assess, and counter its exposure,

resulting in "damage or loss" of much more than $5,000 in value during a one-year period,

Ghoorah Decl. 1} 26. These expenses constitute precisely the type of costs which the CFAA was

intended to remedy.12 See, e.g., Tvco Int'l Inc. v. John Does. 2003 WL 21638205 (S.D.N.Y. July

11, 2003) ("the types of damages awarded by courts under the [CFAA] have generally been

limited to those costs necessary to assess the damage caused to the plaintiffs computer system or

to resecure the system in the wake of a hacking attack.") (citing EF Cultural Travel BV v.

Explorica. Inc.. 274 F.3d 577, 584-85 (1st Cir. 2001) (awarding costs of assessing intrusion into

plaintiffs computer system).

Cvent thus has established a "likelihood of success" that Defendants' actions

violate the CFAA, supporting issuance of an injunction. See Creative Computing. 386 F.3d at

937-38; Register.com. 126 F. Supp. 2d at 252.

C. Cvent Is Likely to Succeed on the Merits of Its Lanham Act "Reverse

Passing Off Claim.

Cvent has alleged that Defendants have engaged in "reverse passing off unfair

competition under Federal law. Compl. fflf 72-81.

The CFAA defines "damage" as "any impairment to the integrity or availability of data, a

program, or information." 18 U.S.C. § 1030(e)(8). Initially, "loss" was not defined in the

statute. In 2001, the CFAA was amended to define "loss" as "any reasonable cost to any victim,

including the cost of responding to an offense, conducting a damage assessment, and restoring

the data, program, system, or information to its condition prior to the offense, and any revenue

lost, cost incurred, or other consequential damages incurred because of interruption of service."

18 U.S.C. §1030(e)(H).

22


Section 43(a) of the Lanham Act creates a civil cause of action for a false

designation of origin made in connection with goods or services. 15 U.S.C. § 1125(a). Included

within the ambit of the Lanham Act is the prohibition of "reverse passing off' or "reverse

palming off of goods. See Dastar Corp. v. Twentieth Century Fox Film Corp.. 539 U.S. 23

(2003). A reverse passing/palming off occurs when a "producer misrepresents someone else's

goods or services as his own." Id. at 27, n. 1. See also Tao of Systems Integration. Inc. v.

Analytical Services & Materials. Inc.. 299 F. Supp. 2d 565,571-72 (E.D. Va. 2004), citing

Dastar.

Liability for reverse passing off also exists when a defendant "sell[s] or offer[s]

for sale another's product that has been modified slightly and then labeled with a different

name." Roho. Inc. v. Marquis. 902 F.2d 356, 359 (5th Cir. 1990) (citing Arrow United Indus..

Inc. v. Hush Richards. Inc.. 678 F.2d 410,412,415 (2d Cir. 1982)). These actions "have both

been recognized as wrongful because they involve attempts to misappropriate another's talents."

Id. at 359 (citation omitted). As a consequence, the act of reverse passing off deprives "the

originator of the misidentified product... of the advertising value of its name and of the

goodwill that otherwise would stem from public knowledge of the true source of the satisfactory

product." Id (citation omitted). See also Universal Furniture International. Inc. v. Collezione

Europa USA. Inc.. 2007 WL 2712926, No. l:04CV00977 (M.D.N.C. Sept. 14, 2007), at *12.

Here Eventbrite has misrepresented Cvent's created and collected materials as its

own. Every Cvent CSN and Destination Guide profile page presented to users by the cvent.com

website contains Cvent's registered trademark, which serves to identify the profile page in

commerce as a Cvent product, and also incorporates the distinctive look-and-feel and trade dress

of the cvent.com website. See Eden Decl. U 13. Each such page contains collected data, amassed

23


at great expense and over considerable time by Cvent, as well as Cvent's own created content.

See id. f14. Defendants have copied this content, rearranged it - sometimes only minimally -

and have placed the content on Eventbrite's website without any reference to the content's

origin. See id. ^ 20. Defendants have removed Cvent's registered trademark and the distinctive

cvent.com look-and-feel and trade dress from copies of Cvent profile pages, which are then

presented to users of the eventbrite.com website without designating Cvent as the origin of those

products. See id. ^f 21. Indeed, on copies of Cvent profile pages which they have presented to

users of the eventbrite.com website, Defendants have replaced Cvent's registered trademark and

the distinctive cvent.com look-and-feel and trade dress with identifying marks indicating that

Eventbrite - not Cvent - is the source of the product in question, and have rendered those pages

with the look-and-feel of the eventbrite.com website. See id. f 22. Such actions constitute a

direct passing-off of Cvent-produced, proprietary materials as Eventbrite's own, and establish a

likelihood of success on the merits of Cvent's "reverse passing off unfair competition claim

under Section 43 (a) of the Lanham Act.

D. Cvent Is Likely to Succeed On the Merits of Its Breach of Contract

Claim.

Cvent alleges that Defendants are breaching the cvent.com Terms of Use in

numerous ways, and are therefore liable for breach of contract under both the Virginia Uniform

Computer Information Transactions Act, Va. Code Ann. § 59.1-501.1 et seq., and the common

law. Compl. fflf 82-92. Cvent is likely to succeed on the merits of its claims under both theories;

both support the entry of preliminary and permanent injunctive relief.

1. Defendants Have Breached a Terms of Use Contract Governed by

the Virginia Uniform Computer Information Transactions Act.

In 2000, the Commonwealth of Virginia enacted UCITA, a comprehensive

package of legislation which regulates and governs transactions in computer information

24


products such as computer software, online databases, and electronic access contracts. See

generally Va. Code Ann. §§59.1-501.1 through 59.1-509.2. Among the subject matters covered

by UCITA is the creation and enforcement of license agreements for online content such as

websites; UCITA provides specific statutory tests for determining the enforceability of, inter

alia, the licenses granted in website terms of use, and sets out specific remedies when users, such

as Defendants, violate the prohibitions of a website's Terms of Use.

Under UCITA, Defendants' repeated use of the Cvent website's Terms of Use

plainly provided "assent" to the Terms of Use, forming a binding contract. Virginia Code

§ 59.1-501.12 provides generally that a person

manifests assent to a record or term if the person, acting with knowledge

of, or after having an opportunity to review the record or term or a copy of

it:

(2) intentionally engages in conduct or makes statements with reason to

know that the other party or its electronic agent may infer from the conduct

or statement that the person assents to the record or term.

and an "electronic agent" (such as the "bots" used by Defendants in at least some of their access

of the Cvent website)

manifests assent to a record or term if, after having an opportunity to

review it, the electronic agent:

(2) engages in operations that in the circumstances indicate acceptance of

the record or term.

Id

UCITA in turn defines what it means to have an "opportunity to review" website terms of use for

purpose of "manifesting assent":

§59.1-501.14:1 Pretransaction disclosures in Internet-type transactions.

This section applies to a licensor that makes its computer information

25


available to a licensee by electronic means from its Internet or similar

electronic site. In such a case, the licensor affords an opportunity to review

the terms of a standard form license, which opportunity satisfies § 59.1-

501.13:1 with respect to a licensee that acquires the information from that

site, if the licensor:

(1) makes the standard terms of the license readily available for review by

the licensee before the information is delivered or the licensee becomes

obligated to pay, whichever occurs first, by:

(A) displaying prominently and in close proximity to a description of the

computer information, or to instructions or steps for acquiring it, the

standard terms or a reference to an electronic location from which they can

be readily obtained; or

(B) disclosing the availability of the standard terms in a prominent place on

the site from which the computer information is offered and promptly

furnishing a copy of the standard terms on request before the transfer of the

computer information; and

(2) does not take affirmative acts to prevent printing or storage of the

standard terms for archival or review purposes by the licensee.

Failure to provide an opportunity to review under this section does not

preclude a person from providing a person an opportunity to review by

other means pursuant to § 59.1-501.13:1 or law other than this chapter.

Here, Defendants unquestionably "had an opportunity to review" the Terms of Use under § 59.1-

501.14:1. First, Cvent "makes the standard terms of the license readily available for review by

the licensee before the information is delivered," Va. St. Ann. § 59.1-501.14:1(1). At all times

relevant to the Complaint, Cvent's main cvent.com web page, all web pages generated by CSN's

searching and browsing features, and all Cvent Destination Guide web pages have provided

prominent links to the Terms of Use. See Eden Decl. H 9. These links are in close proximity to

the web pages' CSN searching and browsing features, and to the web pages' presentation of CSN

content (including the Destination Guide) and permit a user to obtain a copy of the TOUs before

CSN content, including the Destination Guide, is delivered to the user. See id. Second, Cvent

"does not take affirmative acts to prevent printing or storage of the standard terms for archival or

review purposes by the licensee." Va. St. Ann. § 59.1-501.14:1(2). To the contrary, the Terms

26


of Use are readily available for review via the links in both HTML (i.e., web page) and in a

printable, downloadable Adobe Acrobat .PDF form, the very form adopted by this Court in its

ECF system. See Eden Decl. f 9. Both tests under § 59.1-501.14:1 are met and thus, as a matter

of law, Defendants had "an opportunity to review" the Terms of Use.

Having had an "opportunity to review" the Terms of Use, Defendants plainly

"manifested assent" to those Terms by proceeding to mass-download the very content covered

by the Terms of Use. See Va. St. Ann § 59.1-501.12(a)(2) (assent occurs when, "after having an

opportunity to review the record or term or a copy of it... [a person] intentionally engages in

conduct or makes statements with reason to know that the other party or its electronic agent may

infer from the conduct or statement that the person assents"); id at § 59.1-501.12(d) ("Conduct

or operations manifesting assent may be proved in any manner, including showing that a person

or an electronic agent obtained or used the information or informational rights"). Likewise, the

wholesale downloading of Cvent's content by Defendants' "bot" programs also "manifested

assent" to the Terms of use by "engaging] in operations that in the circumstances indicate

acceptance of the record or term." Va. St. Ann § 59.1-501.12(b)(2). Cf. Register.com. 356 F.3d

at 402-03 (non-UCITA software robot case affirming defendant's liability for breaching a

website's terms and conditions when it repeatedly accessed the website, even though it did not

expressly assent to them).

Because the Defendants undertook conduct which manifested assent to Cvent's

Terms of Use after having had an opportunity to review them, Defendants are bound by those

Terms as a matter of Virginia statutory law. They also unquestionably have breached them: as

discussed above, Defendants have reverse engineered, disassembled or decompiled Cvent's

website. See Yestrumskas Decl. ffl[ 15-35. They have used manual and automated means to

27


capture or extract data in bulk from Cvent's website. See id. fflf 9-14. They have accessed the

CSN as competitors, and have copied, extracted, scraped, published, replicated, reproduced, and

used information they obtained for competing commercial purposes. See id. HI 9-35. Finally,

they have violated Cvent's copyright and other intellectual property rights to the CSN and its

Destination Guide. See id. fflj 15-35. Accordingly, they are subject to the UCITA remedies for

breach of the Terms of Use, including injunctive relief. See generally Va. Code Ann. §§ 59.1-

508.15 ("the court may enjoin a licensee in breach of contract from continued use of the

information and informational rights"); Va. Code Ann. § 59.1-506.18(d) (providing for

injunctive relief)-

2. Defendants Have Breached the Terms of Use Contract Under

the Common Law.

To establish a common law breach of contract claim, a plaintiff must prove: "(1) a

legally enforceable obligation of [the] defendant to [the] plaintiff; (2) the defendant's violation or

breach of that obligation; and (3) injury or damage to the plaintiff caused by the breach of

obligation." Filak v. George. 594 S.E.2d 610,614 (Va. 2004).

A website user's assent to terms of use may be manifested by conduct, such as by

a party's repeated use of a website with knowledge that the use is subject to terms and

conditions. See Register.com. 356 F.3d at 402-03 (affirming defendant's liability for breaching a

website's terms and conditions when it repeatedly accessed the website and thus saw the terms

and conditions, even though it did not expressly assent to them); Ticketmaster Corp. v.

Tickets.com. Inc.. No. CV99-7654-HLH(VBKx), 2003 WL 21406289, at *2 (CD. Cal. March 7,

2003) ("a contract can be formed by proceeding into the interior web pages after knowledge (or,

in some cases, presumptive knowledge) of the conditions accepted when doing so").

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Defendants assented to the Terms of Use each time they visited Cvent.com, and

each use has breached the agreement embodied in the Terms of Use. Defendants' thousands of

views of the Cvent.com home and interior pages necessarily provided Defendants with

knowledge, inter alia, that the website could not be used for competitive commercial purposes,

as described in the Terms of Use. Nevertheless, Defendants continued using Cvent.com after

gaining knowledge or constructive knowledge of the Terms of Use and their parameters. This

establishes assent under common law principles of contract. See Register.com. 356 F.3d at 402-

03 and Ticketmaster Corp.. 2003 WL 21406289, at *2.

Cvent is likely to succeed on the merits of its common law breach of contract

claim: as noted above, Defendants' conduct breaches Cvent's express Terms of Use in

numerous ways. It is particularly noteworthy that defendants did so knowing - indeed, having

acknowledged in the Terms of Use - that "Cvent is suffering irreparable injury" from those

violations, Eden Decl. 111, making injunctive relief particularly appropriate.

III. CVENT WILL SUFFER IRREPARABLE HARM IF INJUNCTIVE RELIEF

DOES NOT ISSUE

Cvent faces irreparable harm if Defendants are not restrained from their continued

wrongful use of the copyrighted and proprietary Cvent website content. Unless restrained (and

thereafter permanently enjoined by this Court), Defendants will continue their misappropriation

and wrongful use of the copyrighted and proprietary Cvent website content to unfairly compete

with Cvent.

Defendants' actions to date have caused and continue to cause irreparable harm to

Cvent for which there is no adequate remedy at law. Eden Decl. ffij 11, 27-32; Ghoorah Decl.

ffi[ 26-27. Every day, viewers and customers are directed to the Eventbrite website because of

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proprietary content misappropriated from the Cvent website. This results in a loss of customers

to Cvent not only on those initial transactions made on the Eventbrite website, but also future

transactions when those customers (and customers they refer) return to the Eventbrite website for

future business. Eden Decl. 1fl[ 27-29. Defendants' actions also further diminish and tarnish

Cvent's reputation and goodwill as a leader in this industry. Eden Decl. ffl| 31-32.

Unless a temporary restraining order and preliminary injunction are issued

restraining Defendants from continued use of Cvent's copyright-protected Cvent website content

and future misappropriations, Cvent cannot protect itself from such wrongful acts. If this Court

does not grant a temporary restraining order and preliminary injunction, Defendants will

continue using Cvent's copyright-protected and proprietary Cvent website content, drawing more

and more viewers and customers to Defendants' Eventbrite website by virtue of Cvent's

proprietary material, resulting in lost customers and sales to Cvent and damage to its reputation

and goodwill.

As noted by multiple courts, irreparable harm is presumed where Plaintiff makes

aprimafacie showing of likelihood of success on a copyright infringement claim. See Universal

Furniture International. Inc. v. Collezione Europa USA. Inc.. 196 Fed. Appx. 166, 169-70 (4th

Cir. 2006) (once aprimafacie claim of copyright infringement is made, the holder of a copyright

is entitled to a presumption of irreparable harm); Service & Training. 963 F.2d at 690 (same

holding); Apple Computer. Inc. v. Franklin Computer Corp.. 714 F.2d 1240, 1254 (3rd Cir.

1983), cert, denied, 464 U.S. 1033, 104 S.Ct. 690 (1984) (noting "prevailing view that a showing

of a prima facie case of copyright infringement or reasonable likelihood of success on the merits

raises a presumption of irreparable harm"); Positive Software Solutions. 259 F. Supp. 2d at 537

(holding that "copyright is a right of statutory and even constitutional magnitude. Continuing

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infringement of that right cannot be adequately addressed by damages after the fact"). Cvent is

likely to prevail on its copyright infringement claim as described above, and thus irreparable

harm should be presumed here.

Independent of the presumption, there can be little doubt that Cvent's goodwill

with customers is being irreparably harmed by Eventbrite's continued use of its proprietary

material, and the search engine effects of such use. By virtue of the ubiquitous Google search

engine, customers are being directed away from Cvent's website due to Eventbrite's

misappropriation, and the unique value of Cvent's offerings is similarly undermined. "[A]

potential harm which cannot be addressed by a legal or equitable remedy following a trial, such

as a loss of customers constitutes an irreparable injury." Recister.com. 356 F.3d at 404.

Finally, the significant expense Cvent is being forced to undertake to ensure that

its system is secure against the automated scraping engineered by Defendants is difficult to

accurately quantify, and thus is "irreparable" and supports entry of a temporary restraining order

and preliminary injunction. See id.

IV. THE BALANCE OF EQUITIES TILTS SHARPLY IN CVENT'S FAVOR

The balance of equities for entry of an order and injunction weighs in favor of

Cvent. If a temporary restraining order and preliminary injunction are not entered, Defendants

will continue profiting from their wrongful use of Cvent's copyright-protected and proprietary

Cvent website content. This would encourage similar wrongful acts by Defendants and others

and discourage Cvent and others from investing in and developing proprietary website content.

Cvent will suffer irreparable harm if an order and injunction do not issue as

described above, because Defendants' actions will continue to unfairly pull customers away from

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Cvent's website. By contrast, if an order and injunction do issue, Defendants would only be

enjoined from using content unlawfully obtained from the Cvent website. The only "harm"

Defendants may suffer if an order and injunction issue is that they will be prevented from

engaging in conduct that is illegal. Such "harm" is not cognizable under the law. See, e.g.,

Candle Factory. Inc. v. Trade Associates Group. Ltd.. 23 Fed. Appx. 134, 139 (4th Cir. 2001)

(holding balance of hardships weighed in favor of plaintiff where defendant "had no right to sell

infringing candles in the first instance"); EMI April Music. Inc. v. White. 618 F. Supp. 2d 497,

511 (E.D. Va. 2009) (finding balance of hardships went against copyright violator); Adobe

Systems. Inc. v. Breneneen, 928 F. Supp. 616, 618 (E.D.N.C. 1996) ("[b]ecause defendant is

engaged in infringement, the only hardship he will suffer as a result of an injunction is court-

ordered compliance with the copyright laws"); Value Group. Inc. v. Mendham Lake Estates,

L.p., 800 F. Supp. 1228, 1234 35 (D.N.J. 1992) ("[allowing for a balancing of hardships would

permit a knowing infringer to construct its entire business around infringement").

V. THE PUBLIC INTEREST FAVORS INJUNCTIVE RELIEF

Eventbrite's misconduct harms not only Cvent, but also the public, in that it

undermines the value of copyright and fair competition, the integrity of computer systems, and

the enforceability of contracts involving computer transactions, an area in which the Virginia

legislature has acted specifically to afford plaintiffs injunctive relief and other extraordinary

remedies. Issuance of a temporary restraining order and preliminary injunction in this case will

not adversely affect public interest or public policy. Quite the contrary: the public interest and

policy will be served by the entry of an order and injunction, which are regularly granted to

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provide protection of copyright-protected material as intended by the Copyright Act,13 to prohibit

the unfair competition addressed by § 43(a) of the Lanham Act,14 and to preclude the unlawful

computer intrusions forbidden by the Computer Fraud and Abuse Act.15 Entry of an order and

injunction in this case also serves the public policy of the Commonwealth of Virginia, which has

specifically enacted enhanced remedies against defendants who violate the license terms of a

computer information transaction, including the license granted under a website's Terms of Use.

See Va. Code Ann. §§ 59.1-506.18 and 59.1-508.15.

CONCLUSION

Cvent has expended considerable time, costs, effort, labor and skill to develop the

Cvent website and its proprietary content - including the CSN and its Destination Guide - and

protected this material by registering it with the United States Copyright Office. Cvent also has

notified all users of the Cvent website that its content is copyright protected and proprietary and

that web scraping or use by competitors is unlawful, and that copying or duplicating any content

is prohibited unless expressly approved in writing by Cvent.

13 See, e.g., Service & Training. Inc.. 963 F.2d at 690 ("appellants cannot demonstrate that

permitting them to continue the infringement of [plaintiff s] copyright would serve the public

interest"); Adobe Systems. 928 F. Supp. at 618 ("an injunction will serve the public interest by

protecting the 'special reward' of copyright which motivates 'the creative activity of authors,

inventors,' and programmers") (quoting Sony Corp. of America v. Universal City Studios. Inc..

464 U.S. 417,429 (1984) (internal brackets omitted)).

14 See, e.g., PBM Products. LLC v. Mead Johnson & Co.. No. 3:09-CV-269, 2010 WL

957756 (E.D. Va. March 12,2010) (Lanham Act violation); Lorillard Tobacco Co. v. S & M

Brands. Inc.. 616 F. Supp. 2d 581, 589 (E.D. Va. 2009) (Lanham Act violation)

15 See, e.g., Uhlic. LLC v. Shirley. No. 6:08-1208-HHF-WMC, 2008 WL 3057290 (D.S.C.

Aug. 5, 2008) (CFAA violation); Physicians Interactive. 2003 WL 23018270 (E.D. Va. Dec. 5,

2003) (CFAA violation).

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Through its efforts, Cvent has gained competitive advantages over competitors in

the industry, built a thriving business utilizing the unique content on the Cvent website and

established itself as a leader in this industry. Eventbrite, without incurring similar expenses and

efforts - and without Cvent's consent - misappropriated significant copyright-protected and

proprietary content from the Cvent website and loaded the content onto the Eventbrite website.

Defendants are now infringing Cvent's copyright and wrongfully using the Cvent website

proprietary content to unfairly compete with Cvent. Through the wrongful use of Cvent's

protected material, Defendants have gained a special advantage in competition with Cvent

because Defendants were burdened with little or none of the development expenses incurred by

Cvent and yet are now offering viewers and customers of the Eventbrite website the same unique

content Cvent created.

For these reasons and those stated above, Plaintiff Cvent respectfully requests that

the Court grant Cvent's Motion and enter a temporary restraining order and preliminary

injunction against Defendants.

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Respectfully submitted,

AEGIS LAW GROUP LLP

By: _

Paul C. Rauser (application for admission pro hac

vice pending)

Oliver Garcia (Va Bar No. 70087)

Thomas Shakow (Va Bar No. 70291) (application

for admission pending)

901 F Street, N.W., Suite 500

Washington, D.C. 20004

Tel: (202) 737-3500/Fax: (202) 737-3330

email: ogarcia(5>aegislawgroup.com

Attorneys for Cvent, Inc.

Dated: May 10,2010

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