IO Group, Inc. v. Veoh Networks, Inc.

Filing 24

ANSWER to Complaint byVeoh Networks, Inc.. (Fakler, Paul) (Filed on 9/25/2006)

Case 5:06-cv-03926-HRL

Document 24

Filed 09/25/2006

Page 1 of 7

Dean A. Morehous (CA Bar No. 111841), dam~thelenreid. com THELEN REID & PRIEST LLP 101 Second Street Suite 1800 San Francisco , CA 94105
Telephone: [phone]

Facsimile: (415) 371- 1211

melkin~thelenreid. com pfakler~thelenreid. com THELEN REID & PRIEST LLP 875 Third Avenue 8 New York , New York 10022
Michael S. Elkin (pro hac vice), Paul M. Fakler (pro hac vice),

Telephone: [phone]

Facsimile: [phone]

Attorneys for Defendant YEOH NETWORKS, INC.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
10 GROUP, INC. , a California corporation

Case No. : C06-3926 HRL

Plaintiff,

ANSWER
vs.

YEOH NETWORKS, INC. , a California corporation
Defendant.

Veoh Networks, Inc. ("Veoh") answers plaintiff's Complaint on personal knowledge as to
its own activities and on information and belief as to the activities of others as follows:
V eoh admits that the Complaint purports to state a claim and request relief for

copyright infringement. Veoh denies the remaining allegations in Paragraph 1. Veoh specifically
denies that it has infringed any valid copyright owned by plaintiff.

THELEN REID
& PRIEST LLP
ATIORNEYS AT LAW

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ANSWER

Case 5:06-cv-03926-HRL

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THE PARTIES
Veoh lacks information or knowledge sufficient to enable it to form a belief as to

the truth of the allegations in Paragraph 2, and on that basis denies each and every allegation
contained therein.

Veoh admits that it is a California corporation with its principal place of business

in San Diego. Veoh denies the remaining allegations in Paragraph 3.

JURISDICTION
Veoh admits the allegations in Paragraph 4.

Veoh admits that the Court has personal jurisdiction over Veoh. Veoh denies the
remaining allegations in Paragraph 5.

INTRADISTRICT ASSIGNMENT
Veoh admits the allegations in Paragraph 6.

VENUE
Veoh admits the allegations in Paragraph 7.

FACTS
Veoh lacks information or knowledge sufficient to enable it to form a belief as to

the truth of the allegations in Paragraph 8, and on that basis denies each and every allegation
contained therein.

Veoh lacks information or knowledge sufficient to enable it to form a belief as to

the truth of the allegations in Paragraph 9, and on that basis denies each and every allegation
contained therein.
10.

Veoh lacks information or knowledge sufficient to enable it to form a belief as to

the truth of the allegations in Paragraph 10, and on that basis denies each and every allegation
contained therein.
11.

Veoh admits that Veoh. com is registered through www. domainsbyproxy. com.

Veoh denies the remaining allegations of Paragraph 11.

THELEN REID
& PRIEST LLP
ATIORNEYS AT LAW

ANSWER
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12.

The allegations in Paragraph 12 are vague and incomprehensible. Veoh admits

that users may "interact" with its web site at www. veoh. com as users of almost all websites on the

Internet may do. Veoh denies the remaining allegations in Paragraph 12.
13.

Veoh lacks information or knowledge sufficient to enable it to form a belief as to

the truth of the allegations in Paragraph 13 , and on that basis denies each and every allegation
contained therein.
14. 15. 16. 17. 18. 19.

Veoh denies the allegations in Paragraph 14. Veoh denies the allegations in Paragraph 15. Veoh denies the allegations in Paragraph 16. Veoh denies the allegations in Paragraph 17. Veoh denies the allegations in Paragraph 18. Veoh denies the allegations in Paragraph 19. Veoh specifically denies that it has

infringed any valid copyright owned by plaintiff.
20.

Veoh denies the allegations in Paragraph 20. Veoh specifically denies that it has

infringed any valid copyright owned by plaintiff.
21.

Veoh lacks information or knowledge sufficient to enable it to form a belief as to

the truth of the allegations in Paragraph 21 , and on that basis denies each and every allegation
contained therein.

22.

Veoh admits that "Exhibit A" attached to the Complaint appears to contain copies

of copyright registrations issued by the U S. Copyright Office. Except as so admitted, Veoh
denies the remaining allegations of Paragraph 22.
FIRST CAUSE

OF ACTION

(Copyright Infringement - 17 US. C. 9 501)
23.

Veoh incorporates by reference its responses set forth in Paragraphs 1 through 22

above.
24.

Veoh lacks information or knowledge sufficient to enable it to form a belief as to

the truth of the allegations in Paragraph 24, and on that basis denies each and every allegation

THELEN REID
& PRIEST LLP
ATIORNEYS AT LAW

ANSWER
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contained therein. Veoh specifically denies that it has infringed any valid copyright owned by
plaintiff.
25.

Veoh lacks information or knowledge sufficient to enable it to form a belief as to

the truth of the allegations in Paragraph 25 , and on that basis denies each and every allegation
contained therein.

26.

Veoh lacks information or knowledge sufficient to enable it to form a belief as to

the truth of the allegations in Paragraph 26, and on that basis denies each and every allegation
contained therein.

27. 28. 29.
30. 31. 32. 33. 34. 35.

Veoh denies the allegations in Paragraph 27. Veoh denies the allegations in Paragraph 28. Veoh denies the allegations in Paragraph 29. Veoh denies the allegations in Paragraph 30. Veoh denies the allegations in Paragraph 31. Veoh denies the allegations in Paragraph 32. Veoh denies the allegations in Paragraph 33. Veoh denies the allegations in Paragraph 34. Veoh denies the allegations in Paragraph 35.
SECOND CAUSE

OF ACTION

(Contributory Copyright Infringement)

36.

Veoh incorporates by reference its responses set forth in Paragraphs 1 through 35

above.
37. 38. 39.

Veoh denies the allegations in Paragraph 37. Veoh denies the allegations in Paragraph 38. Veoh denies the allegations in Paragraph 39. Veoh denies the allegations in Paragraph 40.

40.

THELEN REID
& PRIEST LLP
ATIORNEYS AT LAW

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THIRD CAUSE OF ACTION
(Vicarious Copyright Infringement)
41.

Veoh incorporates by reference its responses set forth in Paragraphs 1 through 40

above.
42. 43. 44. 45.

Veoh denies the allegations in Paragraph 42. Veoh denies the allegations in Paragraph 43. Veoh denies the allegations in Paragraph 44. Veoh denies the allegations in Paragraph 45.

THIRD rsicl CAUSE OF ACTION
(Accounting)
46.

Veoh incorporates by this reference its responses set forth in Paragraphs 1 through

, above.
47. 48. 49.

Veoh denies the allegations in Paragraph 47. Veoh denies the allegations in Paragraph 48. Veoh denies the allegations in Paragraph 49.

PRAYER FOR RELIEF
Veoh denies the allegations contained in plaintiff's Prayer for Relief, and contends that
plaintiff is not entitled to any relief sought therein. Veoh requests that the Court:
Dismiss all claims asserted by plaintiflT, with prejudice;

Award Veoh its reasonable costs and attorneys fees; and Grant all other and further relief that the Court deems just and proper.

AFFIRMATIVE DEFENSES First Affirmative Defense
50.

The Complaint fails to state a claim upon which relief may be granted.
Second Affirmative Defense

51.

Plaintiff's claims are barred by the statutory immunity granted to service providers

under 17 US. C. 9512.

THELEN REID
& PRIEST LLP
ATIORNEYS AT LAW

ANSWER
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Third Affirmative Defense

52.

Plaintiff's claims based upon secondary liability are barred because plaintiff cannot

establish the primary liability ofVeoh' s users, including because such users ' alleged conduct

constitutes fair use, de minimis use and/or is otherwise not actionable.
Fourth Affirmative Defense

53.

Plaintiff's claims based upon secondary liability are barred because Veoh'

products and services are staple articles of commerce.

Fifth Affirmative Defense
54.

Plaintiff's claims are barred because the alleged infringement was not caused by a

volitional act attributable to Veoh.

Sixth Affirmative Defense
55.

Plaintiff's claims based upon contributory liability are barred because Veoh did not

have the requisite knowledge of the alleged primary infringement and did not encourage or induce
the alleged primary infringement.

Seventh Affirmative Defense
56.

Plaintiff's claims based upon vicarious liability are barred because Veoh did not

obtain a direct financial benefit from the alleged primary infringement.
Eighth Affirmative Defense

57.

Plaintiffs ' claims based upon vicarious liability are barred because Veoh does not

have the right or ability to control the alleged primary infringement.
Ninth Affirmative Defense

58.

Veoh' s alleged conduct constitutes fair use.
Tenth Affirmative Defense

59.

Plaintiff's claims are barred by laches
Eleventh Affirmative Defense

60.

Plaintiff's claims are barred by waiver.

Twelfth Affirmative Defense
61.
THELEN REID
& PRIEST LLP
ATIORNEYS AT LAW

Plaintiff's claims are barred by estoppel.
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Thirteenth Affirmative Defense

62.

Plaintiff's claims are barred by unclean hands.
Fourteenth Affirmative Defense

63.

Plaintiff's copyrights are invalid and its claims are barred by copyright misuse.

Fifteenth Affirmative Defense
64.

Plaintiff's claims are barred by acquiescence.

Dated: September 25

2006.

THELEN REID & PRIEST LLP
By:

/s/ Paul M. Fakler Paul M. Fakler (pro hac vice)

Dean A. Morehous (CA Bar No. 111841)
Michael S. Elkin

(pro hac vice)

Attorneys for Defendant YEOH NETWORKS, INC.

THELEN REID
& PRIEST LLP
ATIORNEYS AT LAW

- 7ANSWER
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