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Case 1:10-cv-09591-AKH Document 1-3 Filed 12/27/10-Page 1 of 145 Case 1:10-cv-09591-AKH Document 1-3 Filed 12/27/10-Page 2 of 145 NATURE OF ACTION ...................................................................................................................1

Defendants did not violate a duty owed to Noreen if a. Defendants did not willfully infringe a license from Microsoft because. and the infringement alleged here is a non-infringing non-derivative source of the work and the work did not infringe Microsoft's Copyright. b. Defendants did not willfully infringe a license from. Noreen if a. Defendants could not reasonably expect that Noreen would have. not authorized and approved the unauthorized use of the Microsoft-provided API to enable Noreen to use the API in this Work. In particular, Defendants did not anticipate that. Noreen will have the requisite knowledge of the functionality of the API for the alleged infringements to have been lawful. Defendants acknowledged that it did not anticipate any potential Usecase scenarios relating to Noreen's use of the API. b. Defendants did not willfully. infringe a license from Noreen if a. Defendants did not willfully infringe a license from Microsoft that. prohibits a licensee from infringing upon the third party's intellectual property by means of an API that is subject to a license that does not require use for purposes of commercial advantage or private Gain. b. Defendants did not willfully infringe a license from Noreen. because a direct grant of copyright protection in these APIs was not granted on the basis that they were subject to a license granting Authority to license. Therefore, Defendants were not willful infringes of Licensees' intellectual property. (FTC v. MySpace, Inc., No. 6:10-md-02634-JZ (E.D. Va. 2012)). c. Defendants did not willfully infringe a license from Noreen. because Defendants' license to Noreen's APIs for the work on the Internet is a royalty-free, nonexclusive license that did not require Noreen's prior notice-and-take Arrangements. 3. Defendants did not violate a duty owed to Noreen if. d. The alleged infringements here are not copyright infringement. concerning the work itself; the accused code is not subject to copyright protection and is not subject to a license granting right To a source code.

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