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Superior Court California 1 ANDREW P. BRIDGES (pro hac vice pending) [email protected] 2 J. CALEB DONALDSON (pro hac vice pending) [email protected] 3 KATHLEEN LU (pro hac vice pending) [email protected] 4 WINSTON & STRAWN LLP 101 California Street, 39th Floor 5 San Francisco, CA 94111-5802 Telephone: (415) 591-1000 6 Facsimile: (415) 591-1400 7 KURT OPSAHL (pro hac vice) [email protected] 8 CORYNNE MCSHERRY (pro hac vice) [email protected] 9 ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street 10 San Francisco, CA 94110 Telephone: (415) 436-9333 11 Facsimile: (415) 436-9993 5802 - 12 CHAD BOWERS (NV State Bar No. 7283) [email protected] 13 CHAD A. BOWERS, LTD trawn LLP CA 94111 NV State Bar No. 7283 14 3202 West Charleston Boulevard Las Vegas, Nevada 89102 101 California Street California 101 15 Telephone: (702) 457-1001 Winston & S San Francisco, 16 Attorneys for Defendant and Counterclaimant DEMOCRATIC UNDERGROUND, LLC, 17 and Defendant DAVID ALLEN 18 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 19 RIGHTHAVEN LLC, a Nevada limited-liability ) Case No. 2:10-cv-01356-RLH-RJJ 20 company, ) ) ANSWER OF DEFENDANTS 21 Plaintiff, ) DEMOCRATIC UNDERGROUND, LLC ) AND DAVID ALLEN AND 22 v. ) COUNTERCLAIM OF ) COUNTERCLAIMANT DEMOCRATIC 23 DEMOCRATIC UNDERGROUND, LLC, a ) UNDERGROUND, LLC District of Columbia limited-liability company; ) 24 and DAVID ALLEN, an individual ) ) JURY DEMAND 25 Defendants. ) ) 26 ) ) 27 CAPTION CONTINUES ON NEXT PAGE ) ) 28 ) ) 1 1 ) DEMOCRATIC UNDERGROUND, LLC, a ) 2 District of Columbia limited-liability company, ) ) 3 Counterclaimant, ) ) 4 v. ) ) 5 RIGHTHAVEN LLC, a Nevada limited-liability ) company, and ) 6 STEPHENS MEDIA LLC, a Nevada limited- ) liability company ) 7 ) Counterdefendants. ) 8 ) 9 Democratic Underground, LLC (“Democratic Underground”) and David Allen (referred to 10 together below as “Defendants”) respond to the Plaintiff’s Complaint as follows: 11 1. Defendants admit that this is an action for copyright infringement but deny that any 5802 - 12 infringement underlies this action. 13 2. Defendants lack enough information to admit or deny the allegations of paragraph 2 trawn LLP CA 94111 14 of the Complaint and therefore deny the allegations. 3. Defendants lack enough information to admit or deny the allegations of paragraph 3 101 California Street California 101 15 Winston & S San Francisco, 16 of the Complaint and therefore deny the allegations. 17 4. Defendants admit that Democratic Underground is a District of Columbia limited- 18 liability company. Defendants lack enough knowledge to admit or deny the remaining allegations of 19 paragraph 4 of the Complaint and therefore deny the allegations. 5. Defendants admit that Democratic Underground is identified by the current registrar, 20 21 Dotster, Inc. (“Dotster”), as the registrant for the Internet domain found at 22 democraticunderground.com (the “Democratic Underground Domain”). Defendants lack enough 23 knowledge to admit or deny the remaining allegations of paragraph 5 of the Complaint and therefore 24 deny the allegations. 25 6. Defendants deny that Democratic Underground is identified by Dotster as an 26 administrative contact and technical contact for the Democratic Underground Domain. Defendants 27 lack enough knowledge to admit or deny the remaining allegations of paragraph 6 of the Complaint 28 and therefore deny the allegations. 2 1 7. Defendants admit that Mr. Allen is identified by Dotster as an administrative contact 2 and technical contact for the Democratic Underground Domain. Defendants lack enough knowledge 3 to admit or deny the remaining allegations of paragraph 7 of the Complaint and therefore deny the 4 allegations. 5 8. Defendants admit that Mr. Allen is the owner of Democratic Underground, and that 6 Mr. Allen is identified as such on the Democratic Underground Domain. Defendants lack enough 7 knowledge to admit or deny the remaining allegations of paragraph 8 of the Complaint and therefore 8 deny the allegations. 9 9. Defendants admit that this Court has subject matter jurisdiction pursuant to 28 U.S.C. 10 §§ 1331 and 1338(a). Defendants deny the remaining allegations of paragraph 9 of the Complaint. 11 10. Defendants lack enough information to admit or deny the allegations of paragraph 10 5802 - 12 of the Complaint and therefore deny the allegations. 13 11. Defendants admit that the Work in Exhibit 2 states “Copyright © Las Vegas Review- trawn LLP CA 94111 14 Journal.” Defendants lack enough information to admit or deny the remaining allegations of 101 California Street California 101 15 paragraph 11 of the Complaint and therefore deny the allegations. Winston & S San Francisco, 16 12. Defendants deny the allegations of paragraph 12 of the Complaint. 17 13. Defendants deny the allegations of paragraph 13 of the Complaint. 18 14. Defendants deny the allegations of paragraph 14 of the Complaint. 19 15. Defendants admit that the subject matter of the Work includes the candidacy of 20 Sharron Angle for the Republican nomination for United State Senator for Nevada, support for Ms. 21 Angle by members of a conservative movement called the “Tea Party,” and the effect of such 22 support on the viability of Ms. Angle’s candidacy as reflected in polling data. Defendants deny the 23 remaining allegations of paragraph 15 of the Complaint. 24 16. Defendants deny the allegations of paragraph 16 of the Complaint. 25 17. Defendants admit that the Work was and is of specific interest to Nevada residents. 26 Defendants deny the remaining allegations of paragraph 17 of the Complaint. 27 18. Defendants deny the allegations of paragraph 18 of the Complaint. 28 19. Defendants deny the allegations of paragraph 19 of the Complaint. 3 1 20. Defendants deny the allegations of paragraph 20 of the Complaint. 2 21. Defendants deny the allegations of paragraph 21 of the Complaint. 3 22. Defendants deny the allegations of paragraph 22 of the Complaint. 4 23. Defendants deny the allegations of paragraph 23 of the Complaint. 5 24. Defendants deny the allegations of paragraph 24 of the Complaint. 6 25. Defendants deny the allegations of paragraph 25 of the Complaint. 7 26. Defendants deny the allegations of paragraph 26 of the Complaint. 8 27. Defendants admit that the expression embodied in the Work constitutes copyrightable 9 subject matter. Defendants deny the remaining allegations of paragraph 27 of the Complaint 10 28. Defendants lack enough information to admit or deny the allegations of paragraph 28 11 of the Complaint and therefore deny the allegations. 5802 - 12 29. Defendants lack enough information to admit or deny the allegations of paragraph 29 13 of the Complaint and therefore deny the allegations. trawn LLP CA 94111 14 30. Defendants lack enough information to admit or deny the allegations of paragraph 30 101 California Street California 101 15 of the Complaint and therefore deny the allegations. Winston & S San Francisco, 16 31. Defendants deny the allegations of paragraph 31 of the Complaint. 17 32. Defendants admit that they never needed to seek permission to use the Work. 18 Defendants deny the remaining allegations of paragraph 32 of the Complaint. 19 33. Defendants deny the allegations of paragraph 33 of the Complaint. 20 COUNT I 21 34. Defendants here incorporate by reference paragraphs 1 through 33 above. 22 35. Defendants deny the allegations of paragraph 35 of the Complaint. 23 36. Defendants deny the allegations of paragraph 36 of the Complaint. 24 37. Defendants deny the allegations of paragraph 37 of the Complaint. 25 38. Defendants deny the allegations of paragraph 38 of the Complaint. 26 39. Defendants deny the allegations of paragraph 39 of the Complaint. 27 40. Defendants deny the allegations of paragraph 40 of the Complaint. 28 41. Defendants deny the allegations of paragraph 41 of the Complaint. 4 1 42. Defendants deny the allegations of paragraph 42 of the Complaint. 2 43. Defendants deny the allegations of paragraph 43 of the Complaint. 3 44. Defendants deny the allegations of paragraph 44 of the Complaint. 4 45. Defendants deny the allegations of paragraph 45 of the Complaint. 5 46. Defendants deny the allegations of paragraph 46 of the Complaint. 6 DEFENSES 7 Defendants assert the following defenses, without regard to whether they are “affirmative” 8 defenses or matters as to which the Plaintiff has the burden of proof. 9 1. Plaintiff’s Complaint, and each cause of action within it, fails to state a cause of 10 action. 11 2. Process has been insufficient. 5802 - 12 3. Service of process has been insufficient. 13 4. This court lacks personal jurisdiction over Defendants. trawn LLP CA 94111 14 5. This court is not a proper venue for this action. 101 California Street California 101 15 6. Plaintiff’s claims are barred by its failure to join indispensable parties. Winston & S San Francisco, 16 7. Plaintiff’s claims are barred by the doctrine of fair use. 17 8. Plaintiff’s claims are barred by the First Amendment to the United States 18 Constitution. 19 9. Plaintiff’s claims are barred by consent, waiver, acquiescence, license, and estoppel. 20 10. Plaintiff’s claims are barred by its failure to mitigate damages. 21 11. Plaintiff’s claims are barred by the equitable doctrine that the law does not concern 22 itself with trivial matters (commonly known as de minimis non curat lex). 23 12. Plaintiff’s claims are barred by laches. 24 13. Plaintiff’s claims are barred by the doctrine of unclean hands. 25 14. Plaintiff’s claims are barred to the extent any persons, based on whose behavior 26 Plaintiff seeks to hold Defendants liable, are innocent infringers. 27 15. Plaintiff’s claims are barred due to copyright misuse. 28 16. Plaintiff’s claims are barred to the extent it has caused fraud upon the Copyright 5 1 Office. 2 17. Plaintiff’s claims are barred to the extent it has forfeited or abandoned copyright.
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