Dispute Over Video Chat Tech Has Google Fired Up

     SAN JOSE, Calif. (CN) – Google urged a federal judge to dismiss claims that the video chat platform of its Google+ relies on technology stolen from a small start-up.
     The claims stem from a July 2012 complaint filed by Be In its multi-user live video chat platform, CamUp.
     Be In, a New York company, says it introduced Google’s U.K. head of business markets, Richard Robinson, to CamUp when they met in May 2011 to discuss a possible collaboration. It allegedly wanted to show Google how it could use CamUp for a “Watch With Your Friends” on YouTube pages.
     Robinson never told Be In that Google was independently developing anything like CamUp, according to the complaint.
     After that meeting Be In said it saw “a dramatic spike in user traffic to the CamUp site, in particular from Mountain View, California, where Google is headquartered,” and these visitors stayed on the site “longer than the typical user.”
     Be In said these visits averaged almost 40 minutes, much longer than the average CamUp user’s visit of one to four minutes. The Mountain View-based visitors came to the CamUp website directly, rather than from search engines or via links from other sites, Be In claimed.
     In its October 2012 opposition brief, Google said Be In had failed to properly register CamUp’s copyright and that trade-dress claims fail because Be In never officially unleashed the CamUp technology onto the world.
     Meanwhile, shakeups of Be In’s legal representation – Clifford Chance and Davis Wright Tremaine left in February, citing nonpayment, while Gibson Dunn & Crutcher lasted less than two months -left a second amended complaint unfiled.
     Morrison & Forester – Google’s foe in its patent fight with Oracle over Java code in the Android operating system – stepped in to represent Be In last month, finally filing the second amended complaint.
     Google said Thursday that the new complaint removes any factual basis for Be In’s claims that Google stole its trade secrets.
     “The second amended complaint at issue does not allege that Mr. Robinson (or anyone else) transmitted or communicated any claimed trade secrets or any other information to any defendant,” Google’s motion to dismiss states. “It merely advances the unsupported conclusion that ‘defendants have acquired, disclosed and/or intend to use plaintiff’s trade secrets through improper means.'” (Parentheses in original)
     It continued: “Plaintiff no longer alleges any facts to support the claim that any defendant ever accessed the CamUp website or viewed the Terms of Service on the CamUp website. The SAC erases all allegations concerning a ‘dramatic spike’ in user traffic after the May 12, 2011 meeting or unusually long user visits to the website originating from locations where Google employees might be found, that appeared in earlier versions of the complaint.”
     Be In also imperiled its claims by dropping its claims against Robinson – the only person it ever accused of learning and illicitly transmitting trade secrets to Google, according to the motion.
     The second amended complaint additionally makes no reference to the original contention that Google employees visited the CamUp website to mine information about the technology, Google said.
     “Plaintiff should not be permitted to skate by on its deficient claims without factually supporting them, particularly after dropping key allegations,” its motion states.
     Google also points to the parties’ nondisclosure agreement – signed by Robinson during the 2011 meeting in London -which apparently granted Google the right to use any Be In technology that was “publicly available.”
     “Under the terms of the NDA, each party receives as consideration for its disclosure of information a promise that the information will be used exclusively for the ‘purpose’ of evaluating ‘one or more business transactions,'” the motion states. “Notwithstanding this restriction, recipients of the information are permitted (1) to develop independently the same information, and (2) to use any information that is publicly available without restriction. Information that is ‘publicly available’ would include information that was available on video chat, conferencing and social networking websites before and in early 2011. Thus, there could be no viable claim for breach under the written NDA directed to the use of the generic and publicly available information over which plaintiff asserts rights here, such as (1) an individual page or ‘room’ for each user, (2) required use of real names, (3) user-created playlists, (4) group video conferencing, and (5) allowing games and ‘apps’ on a social networking site.”
     In an effort to nix Be In’s claim for statutory copyright damages, Google also claimed that the company failed to properly register with the Copyright Office.
     “Plaintiff did not register the CamUp website until June 22, 2012, nearly a year after the alleged infringement,” Google wrote. “Plaintiff is therefore barred from seeking statutory damages because the alleged infringement ‘commenced after first publication of the work and before the effective date of its registration,’ and the registration was not within three months of first publication.”
     Google is represented in this action by Colleen Bal, Charles Tait Graves and Riana Pfefferkorn of the San Francisco firm Wilson Sonsini Goodrich & Rosati.

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