Fahmy v. Jay-Z et al

Filing 74

ANSWER to Complaint - (Discovery), Complaint - (Discovery), Complaint - (Discovery) 1 filed by Defendants Paramount Home Entertainment Inc, Paramount Pictures Corporation.(Lewis, Alexa)

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RUSSELL J. FRACKMAN (SBN 49087)
[e-mail]
ALEXA L. LEWIS (SBN 235867)
[e-mail]
MITCHELL SILBERBERG & KNUPP LLP
11377 West Olympic Boulevard
Los Angeles, California 90064-1683
Telephone: [phone]
Facsimile: [phone]
Attorneys for Paramount Home Entertainment,
Inc. and Paramount Pictures Corporation

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

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Osama Ahmed Fahmy, an individual,
Plaintiff,

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CASE NO. CV 07-05715 CAS (PJWx)
The Honorable Christina A. Snyder

v.
Jay-Z (aka Shawn Carter), Timothy
Mosely, Kyambo Joshua, Rob Bourdon,
Brad Delson, Mike Shinoda, Dave
Farrell, Joseph Hahn, Chester
Bennington, Big Bad Mr. Hahn Music,
Chesterchaz Publishing, EMI Blackwood
Music, Inc., EMI Music Publishing Ltd.,
Kenji Kobayashi Music, Lil Lulu
Publishing, Machine Shop Recordings,
LLC, Marcy Projects Productions II,
Inc., MTV Networks Enterprises Inc.,
Nondisclosure Agreement Music,
Paramount Home Entertainment, Inc.,
Paramount Pictures Corporation, Radical
Media, Rob Bourdon Music, Roc-AFella Records, LLC, Timbaland
Productions, Inc., UMG Recordings,
Inc., Universal Music and Video
Distribution, Inc., and Warner Music
Inc.,

ANSWER TO COMPLAINT OF
DEFENDANTS PARAMOUNT
HOME ENTERTAINMENT, INC.
AND PARAMOUNT PICTURES
CORPORATION

Defendants.

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Silberberg &
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ANSWER TO COMPLAINT

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Defendants Paramount Home Entertainment, Inc. and Paramount Pictures

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Corporation (collectively “Defendants”), answer the Complaint of Osama Ahmed

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Fahmy (“Plaintiff”) as follows:

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JURISDICTION AND VENUE
1.

The allegations contained in paragraph 1 are legal conclusions to

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which a response is not required. To the extent the allegations in paragraph 1 are

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factual in nature, Defendants deny each and every allegation set forth therein.

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PARTIES
2.

Answering the first and second sentences of paragraph 2, Defendants

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lack information sufficient to form a belief as to the truth of said allegations and on

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that basis deny each and every allegation set forth therein; and answering the third

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sentence of paragraph 2, deny each and every allegation set forth therein.

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3.

Answering paragraph 3, Defendants admit the allegations in the first

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sentence of paragraph 3; lack information sufficient to form a belief as to the truth

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of the allegations in the second sentence of paragraph 3, and on that basis deny

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each and every allegation set forth therein; and deny each and every remaining

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allegation set forth in paragraph 3.

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4.

Answering paragraph 4, Defendants lack information sufficient to

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form a belief as to the truth of said allegations and on that basis deny each and

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every allegation set forth therein.

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5.

Answering paragraph 5, Defendants lack information sufficient to

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form a belief as to the truth of said allegations and on that basis deny each and

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every allegation set forth therein.

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6.

Answering paragraph 6, Defendants lack information sufficient to

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form a belief as to the truth of said allegations and on that basis deny each and

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every allegation set forth therein.

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7.

Answering the first sentence of paragraph 7, Defendants deny each

and every allegation set forth therein. Answering the second sentence of paragraph
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ANSWER TO COMPLAINT

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7, Defendants lack information sufficient to form a belief as to the truth of said

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allegations and on that basis deny each and every allegation set forth therein.

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ALLEGATIONS COMMON TO ALL CLAIMS
8.

Answering the final sentence of paragraph 8, Defendants deny each

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and every allegation set forth therein. Answering the remainder of paragraph 8,

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Defendants lack information sufficient to form a belief as to the truth of said

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allegations and on that basis deny each and every allegation set forth therein.

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9.

Answering paragraph 9, Defendants lack information sufficient to

form a belief as to the truth of said allegations and on that basis deny each and
every allegation set forth therein.
10.

Answering paragraph 10, Defendants lack information sufficient to

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form a belief as to the truth of said allegations and on that basis deny each and

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every allegation set forth therein.

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11.

Answering paragraph 11, Defendants lack information sufficient to

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form a belief as to the truth of said allegations and on that basis deny each and

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every allegation set forth therein.

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12.

Answering paragraph 12, Defendants lack information sufficient to

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form a belief as to the truth of said allegations and on that basis deny each and

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every allegation set forth therein.

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13.

Answering paragraph 13, Defendants lack information sufficient to

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form a belief as to the truth of said allegations and on that basis deny each and

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every allegation set forth therein.

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14.

Answering paragraph 14, Defendants lack information sufficient to

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form a belief as to the truth of said allegations and on that basis deny each and

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every allegation set forth therein.

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15.

Answering paragraph 15, Defendants deny each and every allegation

set forth therein.

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ANSWER TO COMPLAINT

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16.

Answering the first sentence of paragraph 16, Defendants deny each

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and every allegation set forth therein. Answering the second sentence of paragraph

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16, Defendants lack information sufficient to form a belief as to the truth of said

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allegations and on that basis deny each and every allegation set forth therein.

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17.

The allegations contained in paragraph 17 are legal conclusions to

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which a response is not required. To the extent the allegations in paragraph 17 are

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factual in nature, Defendants lack information sufficient to form a belief as to the

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truth of said allegations and on that basis deny each and every allegation set forth

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therein.

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18.

The allegations contained in paragraph 18 are legal conclusions to

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which a response is not required. To the extent the allegations in paragraph 18 are

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factual in nature, Defendants lack information sufficient to form a belief as to the

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truth of said allegations and on that basis deny each and every allegation set forth

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therein.

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ANSWER TO FIRST CLAIM FOR RELIEF
19.

Answering paragraph 19, Defendants incorporate by reference their

answers to paragraphs 1 through 18 above, as if set forth in full herein.
20.

The allegations contained in paragraph 20 are not directed against

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Defendants and as such no answer to paragraph 20 is required. To the extent any

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answer is required, Defendants deny each and every allegation set forth therein.

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21.

The allegations contained in paragraph 21 are not directed against

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Defendants and as such no answer to paragraph 21 is required. To the extent any

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answer is required, Defendants deny each and every allegation set forth therein.

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22.

The allegations contained in paragraph 22 are not directed against

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Defendants and as such no answer to paragraph 22 is required. To the extent any

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answer is required, Defendants deny each and every allegation set forth therein.

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ANSWER TO COMPLAINT

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23.

The allegations contained in paragraph 23 are not directed against

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Defendants and as such no answer to paragraph 23 is required. To the extent any

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answer is required, Defendants deny each and every allegation set forth therein.

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24.

The allegations contained in paragraph 24 are not directed against

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Defendants and as such no answer to paragraph 24 is required. To the extent any

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answer is required, Defendants deny each and every allegation set forth therein.

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25.

The allegations contained in paragraph 25 are not directed against

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Defendants and as such no answer to paragraph 25 is required. To the extent any

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answer is required, Defendants deny each and every allegation set forth therein.

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26.

The allegations contained in paragraph 26 are not directed against

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Defendants and as such no answer to paragraph 26 is required. To the extent any

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answer is required, Defendants deny each and every allegation set forth therein.

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27.

The allegations contained in paragraph 27 are not directed against

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Defendants and as such no answer to paragraph 27 is required. To the extent any

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answer is required, Defendants deny each and every allegation set forth therein.

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ANSWER TO SECOND CLAIM FOR RELIEF
28.

Answering paragraph 28, Defendants incorporate by reference their

answers to paragraphs 1 through 18 above, as if set forth in full herein.
29.

The allegations contained in paragraph 29 are not directed against

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Defendants and as such no answer to paragraph 29 is required. To the extent any

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answer is required, Defendants deny each and every allegation set forth therein.

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30.

The allegations contained in paragraph 30 are not directed against

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Defendants and as such no answer to paragraph 30 is required. To the extent any

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answer is required, Defendants deny each and every allegation set forth therein.

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31.

The allegations contained in paragraph 31 are not directed against

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Defendants and as such no answer to paragraph 31 is required. To the extent any
answer is required, Defendants deny each and every allegation set forth therein.

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ANSWER TO COMPLAINT

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32.

The allegations contained in paragraph 32 are not directed against

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Defendants and as such no answer to paragraph 32 is required. To the extent any

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answer is required, Defendants deny each and every allegation set forth therein.

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33.

The allegations contained in paragraph 33 are not directed against

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Defendants and as such no answer to paragraph 33 is required. To the extent any

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answer is required, Defendants deny each and every allegation set forth therein.

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34.

The allegations contained in paragraph 34 are not directed against

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Defendants and as such no answer to paragraph 34 is required. To the extent any

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answer is required, Defendants deny each and every allegation set forth therein.

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35.

The allegations contained in paragraph 35 are not directed against

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Defendants and as such no answer to paragraph 35 is required. To the extent any

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answer is required, Defendants deny each and every allegation set forth therein.

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ANSWER TO THIRD CLAIM FOR RELIEF
36.

Answering paragraph 36, Defendants incorporate by reference their

answers to paragraphs 1 through 18 above, as if set forth in full herein.

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37.

Answering paragraph 37, Defendants deny each and every allegation

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set forth therein.

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38.

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set forth therein.

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39.

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set forth therein.

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40.

Answering paragraph 38, Defendants deny each and every allegation
Answering paragraph 39, Defendants deny each and every allegation
Answering the first sentence of paragraph 40, Defendants deny each

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and every allegation set forth therein. Answering the second sentence of paragraph

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40, Defendants lack information sufficient to form a belief as to the truth of said

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allegations and on that basis deny each and every allegation set forth therein.

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Silberberg &
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41.

Answering paragraph 41, Defendants deny each and every allegation

set forth therein.

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ANSWER TO COMPLAINT

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42.

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set forth therein.

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Answering paragraph 42, Defendants deny each and every allegation
ANSWER TO FOURTH CLAIM FOR RELIEF

43.

This claim for relief has been dismissed pursuant to the Court’s Order

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of March 20, 2008, and as such no answer to paragraph 43 is required. To the

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extent any answer is required, Defendants incorporate by reference their answers to

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paragraphs 1 through 37 above, as if set forth in full herein.

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44.

This claim for relief has been dismissed pursuant to the Court’s Order

of March 20, 2008, and as such no answer to paragraph 44 is required. To the

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extent any answer is required, Defendants deny each and every allegation set forth

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therein.

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45.

This claim for relief has been dismissed pursuant to the Court’s Order

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of March 20, 2008, and as such no answer to paragraph 45 is required. To the

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extent any answer is required, Defendants deny each and every allegation set forth

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therein.

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46.

This claim for relief has been dismissed pursuant to the Court’s Order

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of March 20, 2008, and as such no answer to paragraph 46 is required. To the

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extent any answer is required, Defendants deny each and every allegation set forth

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therein.

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47.

This claim for relief has been dismissed pursuant to the Court’s Order

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of March 20, 2008, and as such no answer to paragraph 47 is required. To the

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extent any answer is required, Defendants deny each and every allegation set forth

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therein.

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PRAYER FOR RELIEF
48.

Defendants deny that Plaintiff is entitled to recover any of the

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damages, injunctive or other relief sought in his Prayer for Relief, and deny each

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and every allegation contained therein.

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ANSWER TO COMPLAINT

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FIRST AFFIRMATIVE DEFENSE

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(Failure to State a Claim for Relief)

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The Complaint fails to state facts sufficient to state a claim upon

which relief may be granted.

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SECOND AFFIRMATIVE DEFENSE

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(Statute of Limitations)

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50.

Plaintiff’s claims are barred in whole or in part by the applicable

statute(s) of limitations.

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THIRD AFFIRMATIVE DEFENSE

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(Standing)

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51.

Plaintiff lacks standing to bring this action or any claim against

Defendants for the relief sought herein.

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FOURTH AFFIRMATIVE DEFENSE

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(Failure to Join Necessary and Indispensable Parties)

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52.

The Complaint fails to name necessary or indispensable parties,

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including persons and entities that own the allegedly infringed works, as alleged in

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the Complaint.

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FIFTH AFFIRMATIVE DEFENSE

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(Independent Creation)

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53.

Defendants’ works were the result of Defendants’ independent

creation.

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ANSWER TO COMPLAINT

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SIXTH AFFIRMATIVE DEFENSE

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(Adequate Remedy at Law)

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54.

Plaintiff's causes of action, and each of them, and his injunctive and

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restitution remedies, are barred in light of the fact that Plaintiff has an adequate

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remedy at law.

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SEVENTH AFFIRMATIVE DEFENSE

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(Attorneys’ Fees Not Recoverable)

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55.

Plaintiff is barred from any recovery of attorneys’ fees, because, in

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bringing this action, Plaintiff has not alleged any basis upon which attorneys’ fees

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are recoverable.

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EIGHTH AFFIRMATIVE DEFENSE

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(Laches)

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56.

Plaintiff is barred by the doctrine of laches from asserting any of his

claims for relief.

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NINTH AFFIRMATIVE DEFENSE

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(Waiver)

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57.

Plaintiff has, through his actions, conduct, delay, and failure to act,

waived any right to relief.

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TENTH AFFIRMATIVE DEFENSE

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(Estoppel)

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58.

Plaintiff is estopped by his own acts and omissions from asserting any

claims in this action.

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ANSWER TO COMPLAINT

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ELEVENTH AFFIRMATIVE DEFENSE

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(De Minimis)

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59.

To the extent any copyrightable elements from any of the allegedly

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infringed works were used in allegedly infringing works and were not

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independently created, such use is de minimis and not actionable.

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TWELFTH AFFIRMATIVE DEFENSE

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(Authorization, License, Acquiescence, Ratification, Consent)

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60.

To the extent any of the acts or omissions averred in the Complaint

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occurred, those acts were authorized, licensed, acquiesced in, ratified, or consented

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to it, expressly, by implication, or by conduct.

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THIRTEENTH AFFIRMATIVE DEFENSE

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(Lack of Willfulness)

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61.

Defendants have not willfully infringed any alleged copyright in the

Plaintiff’s purported work.

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FOURTEENTH AFFIRMATIVE DEFENSE

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(Failure to Comply with Statutory Requirements)

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62.

Plaintiff has failed to comply with the registration, deposit, and other

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statutory requirements that are conditions precedent to maintaining this action

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and/or to the recovery of statutory damages and attorneys’ fees.

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FIFTEENTH AFFIRMATIVE DEFENSE

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(Work for Hire)

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63.

To the extent Baligh Hamdy wrote or contributed to “Khosara

Khosara,” such contribution was a work made for hire.

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ANSWER TO COMPLAINT

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SIXTEENTH AFFIRMATIVE DEFENSE

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(Unclean Hands)

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64.

Plaintiff’s claims are barred by the doctrine of unclean hands.

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SEVENTEENTH AFFIRMATIVE DEFENSE

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(Good Faith)

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65.

To the extent Defendants engaged in any act averred by Plaintiff, they

did so innocently and in good faith.

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EIGHTEENTH AFFIRMATIVE DEFENSE

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(Lack of Originality)

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66.

Plaintiff’s causes of action are barred as the portion of the Plaintiff’s

work alleged to have been infringed is not original.

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NINETEENTH AFFIRMATIVE DEFENSE

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(Lack of Protectability)

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67.

Plaintiff’s causes of action are barred as the portion of the Plaintiff’s

work alleged to have been infringed is not protectable.

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TWENTIETH AFFIRMATIVE DEFENSE

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(Forfeiture by General Publication)

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68.

Plaintiff’s works are in the public domain by reason of the alleged

author’s sale of said works without affixing any copyright notice thereto.

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ANSWER TO COMPLAINT

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TWENTY-FIRST AFFIRMATIVE DEFENSE

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(Fair Use)

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To the extent any copyrightable elements from the allegedly infringed

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work was used in allegedly infringing works and were not independently created,

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such use constituted fair use.

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TWENTY-SECOND AFFIRMATIVE DEFENSE

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(Not Copyrightable Expression)

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70.

Plaintiff’s claims are barred, in whole or in part, because there is no

infringement of copyrightable expression.

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WHEREFORE, Defendants pray:

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1.

That Plaintiff take nothing by the Complaint, and that the Complaint,

and each claim for relief therein, be dismissed with prejudice;

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2.

For Defendants’ attorneys’ fees and full costs incurred herein; and

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For such other relief as the Court deems just and proper.

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DATED: April 3, 2008

RUSSELL J. FRACKMAN
ALEXA L. LEWIS
MITCHELL SILBERBERG & KNUPP LLP

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By: /s/ Alexa L. Lewis
Alexa L. Lewis
Attorneys for Defendants Paramount Home
Entertainment, Inc. and Paramount Pictures
Corporation

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ANSWER TO COMPLAINT