Prime Data Systems, Inc., Prime Data Worldnet Systems, Inc., and Vernon N. Hale 
Defendants   

CIVIL ACTION NO. 97-1652-A

 AMERICA ONLINE'S COMPLAINT FOR VIOLATION OF THE COMPUTER FRAUD ANDABUSE ACT; THE LANHAM ACT; THE VIRGINIA COMPUTER CRIMES ACT; AND OTHER ACTS IN VIOLATION OF THE COMMON LAW OF THE COMMONWEALTH OF VIRGINIA

NATURE OF PLAINTIFF'S CLAIMS

Operating from Internet domains such as "getrichfast.com" and "fastgrowth.com," Defendants have bombarded America Online, Inc. ("AOL") and its members with millions of unsolicited Internet e-mail messages advertising "Floodgate" and "Goldrush Cloaking Stealth Mailer" -- computer software programs designed toenable other Internet users to transmit their own junk e-mail to AOL and its members. Defendants also transmitto AOL millions of unwanted e-mails advertising products such as the "Laundry CD," which purportedly enablesits purchasers to "NEVER USE TOXIC LAUNDRY DETERGENT AGAIN" and allows its sellers the opportunity to become "$$Millionaires$$." These mass mailings clog AOL's e-mail system and annoy AOL members who receive such unwanted promotions.

Defendants have ignored AOL's repeated demands that they stop their transmissions through AOL's computer network, and have engaged in unauthorized and deceptive practices to prevent AOL from blocking their mass mailings by technical means. Defendants' unauthorized e-mailings have damaged -- and continue each day to damage -- AOL's business by consuming computer and staff resources and impairing the delivery of legitimate Internet e-mail sent to AOL members. In addition, Defendants' indiscriminate and deceptive mailings to AOL members have damaged AOL's goodwill among its members, and created the erroneous impression that AOL endorses or condones Defendants' unsolicited e-mail practices. Defendants have violated the Computer Fraud and Abuse Act (18 U.S.C. § 1030), the Lanham Act (15 U.S.C. 1125(a)), and the Virginia Computer Crimes Act (Va. Code Ann. §§ 18.2-152.2 et seq.), and have converted and trespassed upon AOL's chattels and conspired with third parties to engage in unlawful conduct in violation of Virginia common law. AOL has tried without success to stop Defendants' misappropriation of its computers and computer network by persuasion and technical means. By this action, AOL seeks compensatory and punitive damages and an injunction to prevent further unlawful conduct.

THE PARTIES

AOL is a corporation organized and existing under the laws of the State of Delaware with its principal place of business at 22000 AOL Way, Dulles, Virginia 20166. AOL provides a proprietary, content-based online service. AOL owns and maintains computers and other devices that enable its members ("AOL members") to obtain various services, including access to the Internet. AOL's central computer systems, which include specialized computers (called "servers") that process electronic messages, are located in the Commonwealth of Virginia. E-mail sent to and from AOL members is processed through and stored on these computers. AOL's computers in Virginia likewise provide the functionality for, and maintain the content of, the AOL service provided throughout the United States and abroad.

AOL has registered the domain name "aol.com" with the InterNIC. This domain name is used extensively in commerce and is recognized worldwide as a source identifier of AOL's online services.

AOL has used as a trademark and a service mark the initials "AOL," in various forms and styles, continuously in commerce to identify its products and services since October 1989. This mark has been registered as a trademark upon the Principle Register of the United States Patent and Trademark Office ("PTO"), as United States Registration No. 1,984,337, registered July 2, 1996. The mark has been registered as a service mark upon the Principle Register of the PTO as United States Registration No. 1,977,731, registered June 4, 1996. These registrations are attached at Exhibit A hereto.

On information and belief, Defendant Prime Data Systems, Inc. ("PDSI") is a corporation organized and existing under the laws of the State of Kentucky with its principal place of business at 1945 Scottsville Road, B-2 (160), Bowling Green, Kentucky 42104.

PDSI operates blocks of Internet Protocol ("IP") addresses that Defendants use to facilitate the sending of bulk e-mail.

On information and belief, Defendant Prime Data Worldnet Systems, Inc. ("PDWS") may be a d/b/a designation for Defendant PDSI. Its principal place of business is also 1945 Scottsville Road, B-2 (160), Bowling Green, Kentucky 42104.

PDWS operates and transacts business, or has operated and transacted business, from numerous InterNIC-registered Internet domains, including the following: "netfree.com"; "respondback.com"; "fast-growth.com"; "fastgrowth.com", "a-1floodgate.com"; "prdasyin.com"; "fldgbest.com"; "teksupp.com"; "flsupport.com"; "emailtek.com"; "lotsofmoney.com"; "getrichfast.com"; "clearpen.com"; "vhfldg.com"; "edbca.com"; "firstclassmail.com"; "pro-empowerment.com"; "pdwsi.com"; "lowestprices.com"; "primedatasystems.com"; "mailout.com"; "Internet4biz.com", "87654321.com", "654321.com", "7654321.com", "self-empower.com", "personal-growth.com", and "new-venture.com."

On information and belief, Defendant Vernon Hale is a resident of the State of Kentucky, residing at 1132 Richards Road, Bowling Green, Kentucky 42104-8738. He operates and transacts business, and has operated and transacted business, from the numerous InterNIC-registered Internet domains named above, and is a vice-president of Defendant PDSI. On information and belief, Mr. Hale is also an officer and/or does business as PDWS.

On information and belief, Defendants PDWS, PDSI, and Vernon Hale jointly operate and transact business from the aforementioned domains, acting in concert with one another and with third party contractors and/or agents unknown to Plaintiff AOL.

JURISDICTION AND VENUE

This action arises out of, among other things, Defendants' violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and the Lanham Act, 15 U.S.C. §§ 1051 et seq. The court has jurisdiction of this action based on 15 U.S.C. § 1121(a) and 28 U.S.C. §§ 1331, 1332 and 1338, and has supplemental jurisdiction of plaintiff AOL's state law claims based on 28 U.S.C. § 1367. The amount in controversy exceeds the sum or value of $75,000, exclusive of interest or costs.

Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b), because Defendants have caused tortious injury in this Eastern District of Virginia, and because a substantial part of the events or omissions giving rise to AOL's claims, together with a substantial part of the property that is the subject of AOL's claims, are situated in this judicial district.

THE INTERNET

Defendants committed the acts complained of herein through their use of the electronic messaging capabilities of the Internet. The Internet is a complex "network of networks" that interconnects innumerable smaller groups of linked computers. All of the networks comprising the Internet are connected in a manner that permits any computer on the Internet to communicate with any other computer on the Internet.

The Internet makes it possible for a user rapidly to exchange electronic messages -- e-mail -- with other Internet users in the United States and abroad. E-mail can be sent virtually instantaneously from one individual to another, or from an individual user to a large group of addresses. The Internet's e-mail functionality makes it possible for a sender simultaneously to transmit tens and even hundreds of thousands of copies of a single message.

The InterNIC, a consortium run by the National Science Foundation, is responsible for assigning the unique addresses used by computers to communicate through the Internet. These unique addresses are referred to as Internet Protocol addresses. Like the unique telephone numbers used by individuals and businesses for their telephone communications, IP addresses ensure orderly communications between computer networks on the Internet. An IP address is comprised of 4 sets of up to 3 numbers in the following format: 123.123.123.123.

The InterNIC also assigns "domain" names to individuals, businesses, and organizations using the Internet. Domain names function as convenient shorthand for users of the Internet, giving Internet users the option of using readily understandable proper names to identify themselves and their communications, rather than cumbersome twelve-digit IP addresses. Businesses, for example, typically are assigned by the InterNIC domain names with the ".com" designation (e.g., the domain names "netfree.com" and "pdwsi.com" used by Defendants), while educational and governmental organizations usually are assigned ".edu" and ".gov" domain names (e.g., "topuniversity.edu" and "federalagency.gov"). Because each domain name corresponds to a unique IP address, the InterNIC performs the important task of maintaining the directories that allow computers connected to the Internet to find the appropriate IP address for a particular domain name requested by a user.

E-mail addresses used on the Internet incorporate domain names. An e-mail address consists of a name corresponding to the individual user's account name and a name indicating the "domain" within which the user's account is located, separated by the "@" symbol (e.g. "jdoe@company.com").

The World Wide Web (the "Web") allows Internet users to visit "Web sites" using a communications interface -- a "Web browser" -- that enables the user to view the text and/or pictorial contents of each Web site.

Web sites bear unique domain names that enable Internet users to direct their browsers to the computer hosting the desired Web site. For example, an Internet user wishing to visit the Web site operated by Defendants at the "pdwsi.com" domain would enter the Web address for this domain - "http://www.pdwsi.com."

DEFENDANTS' BULK E-MAILING PRACTICES

Defendants have obtained vast mailing lists of AOL members' e-mail addresses and repeatedly transmitted, at virtually no cost to defendants, tens of millions of messages -- and up to hundreds of thousands of messages per hour -- across the Internet through AOL's computers and computer networks to AOL's members.

Many of Defendants' promotional e-mails advertise "Floodgate" and "Goldrush Cloaking Stealth Mailer," two software programs designed to facilitate the preparation and transmission of bulk e-mail. Copies of two such messages are attached at Exhibit B hereto. According to Defendants' e-mail solicitation, Floodgate "allows [users] to easily build huge target mailing lists . . . to send . . . marketing letter[s] . . . to 100,000's of people." As the promotional messages explain, the Floodgate software works by importing simple text files onto a Floodgate user's computer and "stripping out" the e-mail addresses contained within these files. The promotional messages list file formats that can be imported using the Floodgate software. Included on this list are "America Online Classifieds," "America Online Forums," and "America Online Member Directory" -- about which the messages state "[t]his is the gem of all member directories. Build huge targeted lists."

The Floodgate software is sold in combination with the Goldrush Cloaking Stealth Mailer, which Defendants advertise as enabling its users to combine the addresses from their massive e-mail lists of AOL members with their particular messages. On information and belief, once the message and addresses are merged, the Goldrush program enables the sender deceptively to transmit its messages in batches to AOL members through multiple connections to the Internet, and thereby to evade efforts by AOL to prevent its members from receiving junk mail that they have not asked for and do not want. According to Defendants' promotional e-mails, the Goldrush Cloaking Stealth Mailer "can completely hide the account of origin" of the e-mail sender by erasing the Message-ID and making it difficult, if not impossible, for the message to be traced. Defendants' e-mails boast that, although AOL attempts to filter bulk e-mail, "GoldRush gets through every time!!"

Defendants' promotional messages regarding Floodgate and Goldrush typically direct recipients to a Web site where additional information regarding the products is located. Through that Web site the user is able to download a free demonstration version of the software.

Defendants' dissemination of bulk e-mail advertising the Floodgate and Goldrush Stealth Mailer software is particularly pernicious because these products enable other individuals to engage in the same harmful and fraudulent e-mail practices. Defendants are using deceptive bulk e-mail practices to sell tools that allow virtually anyone to engage in the same unlawful conduct. Defendants also distribute the product and provide training and technical support to purchasers of the software. Defendants' e-mails claim that they "are the HOME of tech support for Floodgate" and that they "have trained more Floodgate Licensees than all others combined." An example of such an e-mail is attached at Exhibit B hereto. The Defendants' Web page at "http://www.netfree.com" makes similar claims and boasts that the "four largest bulk e-mailing services in the world" can be counted among their many clients.

On information and belief, third parties to whom Defendants have sold Floodgate and Goldrush software have, with training and support from Defendants, harvested e-mail addresses from AOL members and then sent unauthorized bulk e-mails to and through AOL's proprietary computer networks to AOL members by deceptive means.

Defendants' bulk e-mails also advertise other products, such as the "Laundry CD." Defendants' e-mails claim that the Laundry CD "Replaces Laundry Detergent Forever! NEVER USE TOXIC LAUNDRY DETERGENT AGAIN!!" These solicitations seek to recruit AOL members who are "Millionaire Minded" as agents to distribute the product and thereby earn residual income "that keeps coming in on a recurring basis, regardless of whether or not you get out of bed in the morning!" Copies of three such ads sent by Defendants are attached at Exhibit C hereto.

The transmission of unsolicited bulk e-mail messages, like those sent by Defendants, is a practice widely condemned in the Internet community. The receipt of unsolicited, unwanted e-mail is one of the principal complaints voiced by AOL members. AOL has received tens of thousands of complaints from its members respecting Defendants' unsolicited bulk mailings.

By letter dated November 5, 1996, AOL notified Defendant Vernon Hale -- the designated contact for Defendant PDWS's "pdwsi.com" domain -- that he and his company were prohibited from any further use of AOL's proprietary computers and computer network. Defendants, however, persisted in transmitting massive batches of unsolicited messages to AOL and its members.

In late 1996, to address AOL members' concerns regarding junk e-mail, AOL developed a tool called "PreferredMail" that is designed to enable AOL to block e-mail sent from particular domains from being received in an AOL member's "mail box." AOL maintains a list in PreferredMail that consists of domains and/or IP addresses that have been the subject of complaints by AOL members and whose operators have been unwilling to cooperate in preventing the transmission of unsolicited bulk e-mail. An AOL member can elect to "turn on" or "turn off" the Preferred Mail tool, and thereby is able to choose whether to receive unsolicited bulk e-mail from the domains or IP addresses contained on the PreferredMail list. AOL's efforts to empower its members to control the messages they receive depends upon senders' use of truthful and nondeceptive e-mail practices.

Defendants, however, have engaged in deceitful practices to frustrate AOL's and its members' ability to filter Defendants' junk mailings. Defendants have increased the number of their registered domains and employed a shifting combination variety of random user names, domains, and IP addresses from which to transmit their promotional messages for the purpose and with the effect of evading PreferredMail and AOL's other technical means of identifying incoming junk mail and blocking the messages -- which AOL's members have elected not to receive -- before they are delivered.

Defendants have also engaged in a practice of falsifying the "reply to" addresses on their e-mail "headers" in order to hinder the recipients from using the e-mail system's reply feature to transmit back to Defendants complaints and requests that Defendants cease their junk mailings. In recent weeks, Defendants have listed in the "reply to" portion of their headers fictitious screen names "@aol.com" (see message attached as Exhibit D hereto, which includes the circled reply line: "DoNotReply@aol.com"). When AOL members who receive these messages click the "reply" box on their screens in an attempt to register complaints with Defendants or to demand that Defendant's cease their bulk mailings, AOL's computer resources are wasted in fruitless attempts to "deliver" the replies to the fake "reply to" addresses. The use of AOL's domain name -- which incorporates and bears AOL's registered trademark and service mark "aol" -- in these fraudulent return addresses also falsely suggests that Defendants' are conducting their bulk e-mail business from AOL's domain.

The commercial solicitations contained in Defendants' unsolicited e-mail usually contain a message that purports to allow the recipient to prevent future solicitations by sending an e-mail to another domain operated by Defendants -- such as "remove@mailout.com." In advertisements for Floodgate and Goldrush, Defendants provide these instructions at the end of their often lengthy e-mails, and the process of replying is complicated by the fact that Defendants' messages require the recipient to prepare and send a distinct e-mail rather than simply clicking the "reply" box on their screens.

On October 6, 1997, AOL sent Defendants another letter demanding that they cease and desist their unauthorized transmissions to and through AOL's proprietary computers and computer networks. Defendants,however, have continued the practice unabated. Attached at Exhibit D hereto is a sample of an e-mail sent byDefendants to AOL members as recently as October 10, 1997, marked to highlight the date sent.

DEFENDANTS' UNSOLICITED BULK E-MAILING PRACTICES CAUSE SUBSTANTIAL HARM TO AOL'S COMPUTER SYSTEMS AND BUSINESS REPUTATION

AOL's e-mail system was created solely for the benefit of AOL members, who pay prescribed fees and who agree to adhere to AOL's terms of service. The e-mail system is operated through dedicated servers that store and route e-mail messages between AOL's members. AOL permits its members to use the "aol.com" domain name, giving each member a distinctive e-mail address from which to exchange e-mail with Internet users (e.g. "member96@aol.com"). AOL's policies prohibit AOL members from transmitting unsolicited bulk e-mail either through AOL's internal systems or through the Internet.

Any mail that is sent through the Internet to an AOL address must be transmitted to and sorted by AOL's mailservers. The AOL mail system has a finite capacity designed to accommodate the demands imposed by AOL's members. The system is not designed to accommodate, and it is vulnerable to disruption by, indiscriminate mass mailings from Defendants and other senders of unsolicited commercial e-mail. AOL has been forced to devote thousands of hours of staff time and millions of dollars in new equipment to processing these mass mailings and addressing member complaints about unsolicited e-mail.

Defendants' repeated transmission of batches of tens and hundreds of thousands of pieces of unsolicited commercial e-mail degrades the performance of AOL's mail system, forcing AOL to divert computer processing resources away from the handling of legitimate e-mail for AOL members. The aggregation of processing time required to process Defendants' and others' bulk e-mail transmissions slows the "delivery" of all Internet e-mail to AOL members, and has at times resulted in significant delays in members' receipt of their e-mail from the Internet.

Defendants' practice of sending unsolicited commercial e-mail through AOL's mail system has the effect of unfairly shifting to AOL the costs of transmitting Defendants' promotional messages. It is AOL, rather than Defendants, which pays the costs of the additional computer and staff resources that must be devoted to the processing of the batches of e-mail that Defendants have transmitted through AOL's computer systems.

Defendants' activities have particularly adverse consequences with respect to the more than one million AOL members who pay for their access to AOL's services and e-mail capability in increments of time. Time spent by such a member accessing, reviewing, and discarding unsolicited e-mail messages is paid for by the member according to the member's hourly billing rates. These AOL members thus end up paying twice for Defendants' activities, both through the increased costs and delays in AOL's operations occasioned by the processing of mass quantities of e-mail, and through increased monthly billings for their connection time with AOL. The costs of member dissatisfaction ultimately are borne by AOL, in lost business and harm to its reputation and goodwill.

Defendants' transmissions of unsolicited commercial e-mail to AOL have caused damage, and continue each day to damage, AOL's business reputation and goodwill, and its relationship with its members. Moreover, Defendants' partially successful efforts to evade the filtering tools (such as PreferredMail) used by AOL to prevent the receipt of unsolicited commercial e-mail is likely to foster the erroneous impression amongst AOL members that AOL has authorized, endorses, or otherwise approves of Defendants' transmission of unsolicited promotional messages.

Defendants' transmission of batches of tens and hundreds of thousands of unsolicited e-mail messages also results in a substantial quantity of mail sent to invalid e-mail addresses, which causes additional harm to the performance of AOL's mail systems. For each message that contains undeliverable addresses, AOL's computers must attempt to transmit a message back to the originating site of the e-mail message to inform it of the delivery failure. Attempts to send such "bounce" messages back to Defendants' computers consume considerable processing resources within AOL's e-mail systems. The problem is exacerbated by the Defendants' use of forged "reply to" lines in the header, because AOL's computer resources are expended on fruitless attempts to deliver the replies to fictitious e-mail addresses.

(18 U.S.C. § 1030 et seq.)

AOL repeats and realleges the allegations of paragraphs 1 through 41 of the complaint.

In connection with the provision of online and Internet services to its members, AOL owns and maintains one or more "protected computers" as defined in the Computer Fraud and Abuse Act, through which e-mail transmissions are received, stored and disseminated in interstate and/or foreign commerce or communication ("AOL's protected computer facilities").

In the year preceding the date of the filing of this complaint, Defendants repeatedly transmitted to AOL's protected computer facilities tens of millions of unsolicited commercial e-mail messages -- in batches of tens and hundreds of thousands -- without authorization. On each occasion on which Defendants transmitted these batches of unsolicited commercial e-mail messages, Defendants knew that the bulk mailings would impair the operation of AOL's protected computer facilities and AOL's ability to provide quality e-mail services to its members.

Defendants have engaged in deceptive practices for the purpose of attempting to conceal from AOL the actual quantity of junk mail being transmitted, thereby frustrating AOL's efforts to protect its e-mail system from injury and shield its members from unwanted mailings.

Defendants knowingly and intentionally caused the transmission of information to, and accessed, AOL's protected computer facilities without authorization, and as a result of such conduct, caused damage, or recklessly caused damage in violation of 18 U.S.C. § 1030 (a)(5).

The damages suffered by AOL as a result of Defendants' conduct include the impairment of the integrity and/or availability of data, programs, systems, and/or information in AOL's protected computer facilities, and aggregate to at least $5,000 in value in the year preceding the date of filing of this complaint.

Defendants threaten to continue to engage in the unlawful transmissions complained of herein, and unless restrained and enjoined will continue to do so, causing AOL irreparable damage. It is difficult to ascertain the amount of compensation that could afford AOL adequate relief for such continuing acts. Moreover, AOL's members remain at risk of continued impairment of the services provided them by AOL. AOL's remedy at law is inadequate to compensate for the injuries threatened.

(18 U.S.C. § 1125(a))

AOL repeats and alleges the allegations of paragraphs 1 through 48 of the Complaint.

Defendants have engaged in acts of unfair competition by falsely and without authorization using AOL's domain name "aol.com" in the "reply to" portion of their e-mail "headers," in connection with Defendants' sale, offering for sale, and distribution in commerce of Defendants' products. Defendants' use of AOL's domain name amounts to a false representation that AOL tolerates or condones their activities or endorses their products, in violation of 15 U.S.C. § 1125(a).

Particularly because "aol.com" incorporates and bears AOL's registered trade and service mark, Defendants' misappropriation of AOL's domain name is likely to cause confusion and to deceive AOL members and others into the erroneous belief that AOL is connected to, affiliated with, approves, or condones Defendant's indiscriminate, unsolicited e-mail practices, causing serious and irreparable damage to AOL in the form of lost good will and business reputation.

It is difficult to ascertain the amount of compensation that could afford AOL adequate relief for Defendants' continuing acts. AOL's remedy at law is inadequate to compensate it for the ongoing injuries caused by such acts.

CONVERSION OR TRESPASS TO CHATTELS UNDER THE COMMON LAW OF VIRGINIA

AOL repeats and realleges the allegations of paragraphs 1 through 52 of the complaint.

The computers, computer networks, and computer services that comprise AOL's e-mail system are the personal property of AOL.

Without valid authorization, Defendants have intentionally and repeatedly obtained access to, and made use of, AOL's proprietary computer equipment and e-mail system to transmit unsolicited commercial e-mail to AOL members for Defendants' own economic benefit.

Through their practice and pattern of repeatedly transmitting unsolicited commercial e-mail in high volume to AOL's proprietary computer equipment and e-mail system, Defendants have wrongfully exercised dominion over AOL's computers and e-mail system in denial of AOL's rights to that property. Defendants' wrongful exercise of dominion over AOL's proprietary computer equipment and e-mail system has deprived AOL and its members of the legitimate use of this commercially valuable system.

Under the common law of Virginia, Defendants' conduct constitutes trespass to AOL's chattels, or, alternatively, conversion of AOL's chattels.

As a result of Defendants' trespass to, or conversion of, AOL's chattels, AOL has suffered and will continue to suffer irreparable injury, loss of reputation and pecuniary damages. AOL's damages include not only pecuniary injury, but the loss of its members and the loss of the good will of its existing members. Unless enjoined by this court, Defendants will continue these acts of conversion and/or trespass, thereby causing AOL continuing and irreparable damage.

Defendants' acts of trespass and/or conversion have been undertaken intentionally with malice, oppression and fraud, justifying the imposition of punitive damages in amount sufficient to punish Defendants and deter Defendants and others from engaging in similar conduct.

(Va. Code Ann. § 18.2-152.1 et seq.)

AOL repeats and realleges the allegations of paragraphs 1 through 59 of the complaint.

In connection with the provision of online and Internet computer services to its members who are citizens of the Commonwealth of Virginia and other states, AOL maintains in the Commonwealth of Virginia computers and computer networks that are "property" within the meaning of Va. Code Ann. § 18.2-152.2.

Without authority, Defendants have repeatedly transmitted batches of tens and hundreds of thousands of unsolicited commercial e-mail messages to and through AOL's computers and computer networks in the Commonwealth of Virginia.

In transmitting these batches of tens and hundreds of thousands of unsolicited commercial e-mail messages, Defendants knowingly used deceptive practices for the purpose of attempting to conceal from AOL the actual quantity of junk mail being sent and the sender of the transmission.

Without authority, Defendants have obtained access to and used AOL's computers and computer networks with the intent to obtain the use of AOL's property and services by false pretenses, in violation of Va. Code Ann. § 18.2-152.3.

The foregoing acts of Defendants have caused injury to AOL, its computers and computer networks, and to AOL's business relations, reputation and goodwill.

Defendants threaten to continue to engage in the unlawful transmissions complained of herein, and unless restrained and enjoined will continue to do so, causing AOL irreparable damage. It is difficult to ascertain the amount of compensation that could afford AOL adequate relief for such continuing acts. Moreover, AOL's members in the Commonwealth of Virginia remain at risk of continued impairment of the services provided them by AOL. AOL's remedy at law is, therefore, inadequate to compensate for the injuries threatened.

COMMON LAW CONSPIRACY TO COMMIT TRESPASS TO AND CONVERSION OF CHATTELS AND VIOLATE FEDERAL AND VIRGINIA STATUTES

AOL repeats and realleges the allegations of paragraphs 1 through 66 of the complaint.

On information and belief, Defendants have conspired and combined with third parties, including but not limited to designers and purchasers of the Floodgate and Goldrush software, to send unauthorized bulk e-mails to and through AOL's proprietary computers to AOL members, wrongfully exercising dominion over AOL's proprietary computers and depriving AOL and its members of the legitimate use of this commercially valuable system, and thereby committing trespass to or conversion of chattels under Virginia common law.

On information and belief, Defendants have conspired and combined with third parties to transmit unauthorized bulk e-mail messages to AOL's protected computers, which the conspirators knew would impair the operation of AOL's protected computer facilities, and to engage in deceptive practices for the purpose of concealing from AOL the actual quantity of junk mail being transmitted in order to frustrate AOL's efforts to protect its e-mail system from injury, in violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030.

On information and belief, Defendants have conspired and combined with third parties to transmit unsolicited commercial e-mail messages to and through AOL's computers and computer networks located in the Commonwealth of Virginia, using false pretenses for the purpose of concealing from AOL the actual quantity of messages sent, and obtaining access to and use of AOL's computers and computer networks with the intent to obtain property and computer services in violation of the Virginia Computer Crimes Act.

On information and belief, Defendants have marketed and distributed Floodgate and Goldrush software to the aforementioned third parties, and provided technical support and training to them, in furtherance of these conspiracies.

The effectuation of these conspiracies through the transmission by Defendants' co-conspirators of unauthorized bulk e-mail to AOL and through AOL's e-mail system to its members has damaged AOL and its protected computer systems by impairing the integrity and/or availability of data, programs systems, and/or information, and has damaged AOL's business relations, reputation, and good will among its members.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff AOL requests entry of judgment in its favor and against Defendants PDWS, PDSI, and Vernon Hale as follows:

Awarding AOL compensatory damages from Defendants, jointly and severally, in an amount to be proven at trial, caused by Defendants' violation of the Computer Fraud and Abuse Act, the Lanham Act, and the Virginia Computer Crimes Act, and Defendants' acts of conversion and trespass to chattels in violation of Virginia common law;

Awarding AOL punitive damages against Defendants, jointly and severally, in an amount sufficient to punish and deter these Defendants and others from similar malicious, oppressive, and fraudulent conduct in the future; and

Granting preliminary and permanent injunctive relief against PDWS, PDSI, Vernon Hale, their agents, and all persons acting in concert or participating with them, enjoining them from:

Sending or transmitting, or directing, aiding, or conspiring with others to send or transmit, any unsolicited electronic mail message, or any electronic communication of any kind, to AOL or its members without prior written authorization;

Using, or directing, aiding, or conspiring with others to use, AOL's computers or computer networks in any manner in connection with the transmission or transfer of any form of electronic information across the Internet;

Sending or transmitting, or directing, aiding, or conspiring with others to send or transmit, electronic mail or messages bearing any false, fraudulent, anonymous, inactive, deceptive, invalid return information, or containing the domain "aol.com," or otherwise using any other artifice, scheme or method of transmission that would prevent the automatic return of undeliverable electronic mail to its original and true point of origin; and

Obtaining and/or using, or directing, aiding, or conspiring with others to obtain and/or use, membership with AOL to acquire or compile AOL member addresses for use in the transmission of unsolicited promotional messages to those AOL members;

Awarding AOL and its attorneys its costs and attorneys' fees in prosecuting this action; and

Granting AOL such other or additional relief as this court deems just and proper under the circumstances.

Dated: October 21, 1997 

By: __________________________

Attorneys for America Online, Inc.
Randall Boe (VSB# 27951)
22000 AOL Way
Dulles, Virginia 20166-9323
(703) 265-1428

By: __________________________

LATHAM & WATKINS
Jon L. Praed (VSB# 40678)
1001 Pennsylvania Avenue, N.W.
Suite 1300
Washington, D.C. 20004-2505
(202) 637-2200

OF COUNSEL

LATHAM & WATKINS
Everett C. Johnson, Jr.
Richard P. Bress
Elizabeth T. Carlson
1001 Pennsylvania Avenue, N.W.
Suite 1300
Washington, D.C. 20004-2505
(202) 637-2200