DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, EASTERN DISTRICT DAVID ALLISON DBA CHEAT CODE CENTRAL, Plaintiff, v. JEREMY N. WISE, and WISE BUY NOW, LLC, Defendants. Case No. 2:08-cv-00157 Judge Watson Magistrate Judge Abel DEFENDANTS MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56(B) of the Federal Rules of Civil Procedure, Defendants Jeremy N. Wise and Wise Buy Now, LLC ( Defendants ) respectfully move the Court for SUMMARY JUDGMENT on all of Plaintiff David Allison d/b/a Cheat Code Central s claims against Defendants. A memorandum in support of this MOTION is attached hereto and an Appendix will be submitted herewith. Respectfully submitted, _/s/ Sabrina Haurin_____ Sabrina Haurin (0079321) Trial Attorney for Defendants Jeremy N. Wise and Wise Buy Now, LLC One Columbus 10 West Broad Street, 21st Floor Columbus, OH 43215-3422 Telephone: (614) 229-3253 Telefax: (614) 221-0479 Case 2:08-cv-00157-MHW-MRA Document 63 Filed 03/05/10 Page 1 of 32Of Counsel: Charles Lee Mudd, Jr.

2 , pro hac vice Mudd Law Offices 3114 West Irving Park Road, Suite 1W Telephone: (773) 588-5410 Telefax: (773) 588-5440 Bailey Cavalieri LLC One Columbus 10 West Broad Street, 21st Floor Columbus, OH 43215-3422 Telephone: (614) 229-3209 Telefax: (614) 221-0479 iiCase 2:08-cv-00157-MHW-MRA Document 63 Filed 03/05/10 Page 2 of 32 DEFENDANTS MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT TABLE OF CONTENTS TABLE OF CONTENTS .. iii TABLE OF AUTHORITIES .. iv INTRODUCTION.. 1 FACTUAL AND PROCEDURAL BACKGROUND.. 2 ARGUMENT AND AUTHORITIES.. 4 A. SUMMARY JUDGMENT Standard .. 5 B. Plaintiff s Alleged Copyrights Are Invalid and Unenforceable .. 6 C. Plaintiff s Claims are Barred Due to Copyright Misuse and Unclean Hands.. 9 D. Plaintiff s Mend the Hold Strategy, Plaintiff is Estopped from Changing his Contentions to Avoid Invalidity.. 13 E. Plaintiff is Unable to Show Substantial Similarity as a Matter of Law.

3 15 1. SUMMARY JUDGMENT and Substantial Similarity ..16 2. Plaintiff's Arrangement Is Not Original or Protectable ..17 3. Plaintiff Lacks Evidence of Substantial Similarity ..21 F. SUMMARY JUDGMENT Must Be Granted as to Counts Two Through Four ..23 CONCLUSION .. 25 iiiCase 2:08-cv-00157-MHW-MRA Document 63 Filed 03/05/10 Page 3 of 32 TABLE OF AUTHORITIES PAGE CASES Advisers, Inc. v. Wiesen-Hart, Inc., 238 706 (6th Cir. 1956) ..8-9 Alcatel USA, Inc. v. DGI Techs., Inc., 166 772 (5th Cir. 1999) .. 10 Altera Corp. v. Clear Logic, Inc., 424 1079 (9th Cir. Cal. 2005) ..10 Amway Distributors Benefits Ass n v. Northfield Ins. Co., 323 386 (6th Cir. 2003) .. 5 Anderson v. Liberty Lobby, Inc., 477 242 (1986) .. 5 Assessment Techs. of WI, LLC v. WIRE data, Inc., 350 640 (7th Cir. 2003) .. 10 Bird v. Parsons, 289 865 (6th Cir. 2002) .. 24 Cannon Group, Inc. v. Better Bags, Inc., 250 F. Supp. 2d 893 ( Ohio 2003).

4 8, 9 Cesare v. Work, 36 Ohio 26 (1987) ..24 Champions Golf Club, Inc. v. Champions Golf Club, Inc., 78 1111 (6th Cir. 1996) ..24 Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 600 (1st Cir. 1988) ..20 Dawson v. Blockbuster, Inc., 2006 Ohio 1240 (Ohio Ct. App. 2006) .. 24 Eckes v. Card Update, 736 859 (2d Cir. 1984) ..8, 9 Faessler v. Playing Card Co., 2007 Dist. LEXIS 12767 ( Ohio Feb. 9, 2007) ..18, 23 Feist Publ ns, Inc. v. Rural Tel. Serv. Co., 499 340 (1991) ..16, 17, 23 Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 119 (2d ) .. 17-18 Garner v. Sawgrass Mills Ltd. P ship, 35 1396 (D. Minn. 1994) ..8 GB Mktg. USA Inc. v. Gerolsteiner Brunnen GmbH & Co., 782 F. Supp. 763 ( 1991) .. 9 Grand Trunk W. R. Co. v. H. W. Nelson Co., 116 823 (6th Cir. 1941) ..14, 15 ivCase 2:08-cv-00157-MHW-MRA Document 63 Filed 03/05/10 Page 4 of 32 TABLE OF AUTHORITIES (cont d) PAGE CASES Info-Hold, Inc. v. Sound Merch., Inc., 538 448 (6th Cir.)

5 Ohio 2008) .. 9 In re Independent Serv. Organizations Antitrust Litig., 85 F. Supp. 2d 1130 (D. Kan. 2000) ..10 Key Publ ns, Inc. v. Chinatown Today Pub. Enter., Inc., 945 509 (2d Cir. 1991) ..23 Kohus v. Mariol, 328 848 (6th Cir. Ohio 2003) ..16, 17, 20 Lasercomb Am., Inc. v. Reynolds, 911 970 (4th Cir. 1990) .. 10, 13 Lava Records LLC v. Amurao, 2009 App. LEXIS 25037 (2d Cir. Nov. 16, 2009) ..10 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 574 (1986).. 5 Microsoft Corp. v. Compusource Distribs., Inc., 115 F. Supp. 2d 800 ( Mich. 2000) .. 10 Mihalek Corp. v. Mich., 814 290 (6th Cir. 1987) ..21 MMK Group, LLC v. SheShells Co., LLC, 591 F. Supp. 2d 944 ( Ohio 2008) ..23-24 Murray Hill Publ ns, Inc. v. Twentieth Century Fox Film Corp., 361 312 (6th Cir. 2004) ..16 Palladium Music, Inc. v. EatSleepMusic, Inc., 398 1193 (10th Cir. 2005)..8 Publications Int l v. Meredith Corp., 88 473 (7th Cir. 1996) .. 20-21 QAD, Inc. v. ALN Assocs., Inc.

6 770 F. Supp. 1261 ( Ill. 1991) .. passim Redding v. St. Eward, 241 530 (6th Cir. 2001)..5 Ross, Brovins & Oehmke, v. Lexis Nexis Group, 463 478 (6th Cir. 2006) ..16 R. Ready Prods., Inc. v. Cantrell, 85 F. Supp. 2d 672 ( Tex. 2000) .. 8, 9 Russ Berrie & Co. v. Jerry Elsner Co., 482 F. Supp. 980 ( 1980) .. 8, 9 Saxon v. Blann, 968 676 (8th Cir. 1992) .. 10, 11, 12, 13 Schoolhouse, Inc. v. Anderson, 275 726 (8th Cir. 2002) ..22, 23 vCase 2:08-cv-00157-MHW-MRA Document 63 Filed 03/05/10 Page 5 of 32 viTABLE OF AUTHORITIES (cont d) PAGE CASES Stromback v. New Line Cinema, 384 283 (6th Cir. 2004) ..21 Twin Peaks Prods. v. Publ ns Int l, Ltd., 996 1366 (2d Cir. 1993) .. 15, 22 Video Pipeline, Inc. v. Buena Vista Home Entm t, Inc., 342 191 (3d Cir. 2003) .. 10 Vogue Ring Creations, Inc. v. Hardman, 410 F. Supp. 609 ( 1976) ..9 Wickham v. Knoxville Int l Energy Expo., Inc., 739 1094 (6th Cir. 1984) ..16 Winfield Collection Ltd. v. Gemmy Indust. Corp.

7 , 311 F. Supp. 2d 611 ( Mich. 2004) .. 16 Wisconsin Elec. Co. v. Dumore Co., 35 555 (6th Cir. 1929) ..24 Yocono s Restaurant v. Yocono, 100 Ohio App. 3d 11 (Ohio Ct. App. 1994) .. 24 STATUTES 15 1125(a)(1)(A) .. 24 17 102(b) ..17 17 103(a) .. 8 OTHER Fed. R. Civ. P. 56(c).. 5 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT [I] (May 1996) ..21 Case 2:08-cv-00157-MHW-MRA Document 63 Filed 03/05/10 Page 6 of 32 Defendants Jeremy N. Wise and Wise Buy Now, LLC, by and through their counsel of record, file this Memorandum in Support of Defendants MOTION for SUMMARY JUDGMENT ( MOTION ). In support of their MOTION , Defendants also rely on their Statement of Material Facts ( SMF ) and supporting documents, all of which are filed concurrently herewith. I. INTRODUCTION After nearly three years of litigation, the straightforward facts establish that the Plaintiff filed for copyrights by misrepresenting the scope of his authorship ; used these invalid copyrights to file litigation against multiple competitors, including the Defendants, for alleged copyright infringement; misrepresented the scope of his authorship in such litigation and, in particular, to this Court; and, after Defendants exposed such misrepresentations, admitted having engaged in the very conduct about which he complains.

8 In the end, as a final effort to avoid a determination that he filed a completely fraudulent complaint, the Plaintiff has reduced his allegations against the Defendants to four charts of factual codes for which he cannot demonstrate substantial similarity. Given all of the foregoing and for the reasons articulated below, this Court should, alternatively or collectively, find the Plaintiff s copyrights invalid and unenforceable; determine that the Plaintiff is estopped from changing his legal theories at this stage of the litigation; hold that the Plaintiff s claims are barred by the doctrines of copyright misuse and unclean hands; and, conclude that the Plaintiff cannot demonstrate substantial similarity with respect to the four minute charts upon which he now bases his entire litigation. Thereafter, as none of the claims in the Plaintiff s Amended Complaint can survive, the Court should grant SUMMARY JUDGMENT as to the Plaintiff s Amended Complaint in its entirety. 1#628024v1 11727-04804 Case 2:08-cv-00157-MHW-MRA Document 63 Filed 03/05/10 Page 7 of 32II.

9 FACTUAL AND PROCEDURAL BACKGROUND1 The Plaintiff and Defendants ( Parties ) all have operated and owned websites that contain game hints, cheat codes, and other content related to electronic games (collectively, this content shall be referred to as cheats throughout this memorandum).2 In short, the Parties are competitors. To be sure, there exist other competitors of the Parties that host cheat-related websites. As the Plaintiff admits, cheats are, at their essence, factual content. These cheats help individuals play electronic games and/or enhance their playing experience. As the Plaintiff also now admits, operators of cheat websites will acquire cheats from other similar websites in the normal course of business. SMF 53; Doc. #62 at 11. Consequently, cheat websites acquire thousands and thousands of cheats which they publish on the Internet. In this instance Plaintiff acquired cheats from, at the very minimum, another cheat website at SMF 15-22. Although many of the cheats acquired by the Plaintiff from had been attributed to third party authors, the Plaintiff published these cheats without attributing authorship to the third parties.

10 SMF 15-22; Affidavit of Jeremy Wise ( Wise Aff. ), attached as Appendix Exhibit H, 35-37. Being that cheats are factual content, this too may be a normal course of business among cheat websites. Despite having acquired cheats authored by third parties and incorporated them into his website, the Plaintiff applied for and obtained two copyright registrations (one in 2005 and one in 2007) for all of his website SMF 18-22. In applying for such copyright 1 The Defendants specifically incorporate the Statement of Material Facts provided in Appendix 1. 2 During the course of this litigation, Defendant Wise Buy Now, LLC acquired any and all electronic game related domain names and content that Defendant Jeremy Wise owned at the time of the alleged infringement. Soon after this occurred, counsel for Defendants informed counsel for the Plaintiff. 3 Plaintiff obtained a third copyright registration for a book of cheats that actually predated the registrations for the websites.