Williams v. Scribd, Inc. et al

Filing 22

ANSWER with jury demand to 9 Amended Complaint , by Scribd, Inc.(Sybert, Richard) modified on 7/9/10 to add jury demand (kaj).

Williams v. Scribd, Inc. et al

Doc. 22

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Richard P. Sybert, Ba r No. 80731 email [e-mail] Yuo-Fong C. Amato, Bar No. 261453 email [e-mail] GORDON & REES LLP 101 W. Broadway, Suite 1600 San Diego, Ca liforn ia 92101 tel [phone] / fax [phone] Attorneys for Defendant SCRIBD, INC.

UNITED S TA TES D IS TRIC T CO UR T SOUTH ERN DIS TRIC T OF CALIFORNIA

LARRY WILLIAMS,

) ) Pla intiff, ) ) vs. ) ) SCRIBD, INC., a corporation, Ga laxiaM ia sued as ) DOE 1; ap i_user_11797_malvik as D OE 2; ) alukmanto as DOE 3; ap i_user_11797_NEBOJSAJE ) as DOE 4; m ikaj as Doe 5; S rikanthbnm sued as ) DOE 6; ap i_user_11797_Sathis sued as DOE 7; ) api_user_11797_tevado... sued as DOE 8; ) api_user_11797_ingrid... sued as DOE 9; and DOES ) 10 to 40 a re upload infringe rs to be named, ) ) Defendants. ) )

CASE NO. 09-c v-1836-LA B-BGS DEFENDANT SCRIBD, IN C.'S ANS WER TO FIRST AMENDED COMPLAINT Demand for Jury Tria l

Defendant Scribd, Inc. (" Defendant" or " Scribd") hereby responds to Plaintiff's First Amended Complaint (" FAC") as follows: Nature of the Acti on 1. Scribd admits that Pla int iff brought this act ion. In part due to the lack of

specific ity in Paragraph 1, Scribd lac ks suffic ient information or belief to answer the a llegat ions in Para graph 1 relating to Pla int iff's genera l c la ims about purported " works," Pla intiff's cla im that he owns copyrights covering ce rta in " works," or the other defendants' actions, and on that

-1SCRIBD, INC.'S ANSWER TO THE FIRST AMENDED COMP LAINT CASE NO. 09-CV-1836-LAB-BGS
Dockets.Justia.com

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ground, denies those allegat ions. Scribd denies the remaining a llegat ions of Paragraph 1 of the FAC. Juris diction and Venue 2. The first c la im for direct copyright infringement has been dismissed with

prejudice by the Court on June 24, 2010. Sc ribd admits that this Court has subject matter jurisdict ion over the contributory copyright infringement cla im. 3. 4. 5. Scribd denies the a llegat ions in Para graph 3 of the FAC. Scribd denies the a llegat ions in Para graph 4 of the FAC. Scribd admits that this Court has personal jurisdict ion over Sc ribd for the

purposes of this action. Scribd lac ks suffic ient information or belie f to answer the a llegat ions relat ing to the personal jurisdict ion of the other defendants, and on that ground denies those alle gat ions. Scribd denies the rema ining a lle gat ions of Paragraph 5 of the FAC. 6. Scribd admits that it conducts business in Californ ia. Sc ribd lac ks suffic ient

information or belief to answer the alle gat ions relat ing to the other defendants and to Plaintiff's residence, and on that ground, denies those allegations. Scribd denies the remain ing a lle gat ions of Paragraph 6 of the FAC. The Parties and Facts Common to All Cl aims 7. Scribd lacks suffic ient information or belief to answer the a lle gat ions relat ing to

Pla intiff's residence, and on that ground denies the allegat ions in Para graph 7 of the FAC. 8. Scribd lacks suffic ient information or belief to answer the a lle gat ions of

Paragraph 8 of the FAC and on that ground denies those allegations. 9. Scribd lacks suffic ient information or belief to answer the a lle gat ions of

Paragraph 9 of the FAC and on that ground denies those allegations. Scribd denies the remaining a llegat ions of Paragraph 9 of the FAC. 10. Scribd admits that it is a corporation with a princ ipal p lace of business in San

Francisco, California. Scribd admits that it is online provider of se lf-publishing services. Scribd admits that it was incorporated in 2007, afte r the D igita l M illennium Copyright Act was s igned into law on October 28, 1998. Scribd admits that it ac curately asserts that it complies w ith the -2SCRIBD, INC.'S ANSWER TO THE FIRST AMENDED COMP LAINT CASE NO. 09-CV-1836-LAB-BGS

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DMCA. Scribd admits that it ta kes down documents from its website as required by the DMCA. Scribd admits that Exhibit B appears to be a printed copy of the web content available at http://support.scribd.com/forums/33939/entries/38439 as of M ay 28, 2009. The phrase " preupload and pre-translation to iPaper format protection" is uninte lligible, and on that ground Scribd denies the a llegat ions containing that text because it lac ks sufficient information or belie f to answer that allegat ion. Scribd denies the remain ing a lle gat ions of Paragraph 10 of the FAC. 11. Paragraph 11 is large ly unintelligib le, and on that ground Scribd denies the

alle gat ions in that paragraph because it lacks suffic ient information or belief to answer the alle gat ions contained therein. Scribd admits that documents on its website are displayed in the iPaper format and that it offers free access to certa in documents through its service , as we ll as paid access to certa in documents available through the Scribd Store. Scribd admits that its entire website can be accessed through a web browser. Scribd admits that documents on its website that are not located in the Scribd Store can be linked to from other websites, as long as the documents are ava ilab le, as e very Un iform Resource Locator (" URL") can be made into a link. Scribd admits that documents on its website that are not located in the Scribd Store can be embedded on other websites, as long as the documents are availab le. Scribd admits that there is no fee required to access Scribd's website, and that Scribd's entire website is a va ilab le for a ccess through the World Wide Web. Scribd denies the remaining a llegat ions of Paragraph 11 of the FAC. 12. Paragraph 12 is part ia lly unintelligib le, and on that ground Scribd denies the

alle gat ions in that paragraph because it lacks suffic ient information or belief to answer the alle gat ions contained therein. Scribd admits that it is one of the largest " social publishing" companies in the world. Scribd admits that it deve loped the " iPaper document reader" and that all documents on its website are d isplayed in the iPaper format. Scribd denies the remaining alle gat ions of Paragraph 12 of the FAC. 13. Scribd admits that Exhibit C appears to be a printed copy of the web content

ava ilable at http://www.scribd.com/about on or around February 5, 2010, that it contains sentences that read: (1) " Scribd's vision is to liberate the w ritten word--to turn everyone into a -3SCRIBD, INC.'S ANSWER TO THE FIRST AMENDED COMP LAINT CASE NO. 09-CV-1836-LAB-BGS

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publisher and create the best possible reading experience on the web and mobile platforms," and (2) " At Scribd, we built a te chnology that's broken barriers to tradit ional publishing and in the process also built one of the la rgest re aderships in the world." Scribd admits that John Wiley & Sons, Inc. is a re gistered user of its service and that John Wiley & Sons, Inc. has uploaded authorized content to Scribd's website (http://www.scribd.com/Wiley). Scribd lac ks suffic ient information or belief to answer the alle gat ions relat ing to P la intiff's alle ged " August 2009 search," and on that ground, denies those alle gat ions. Scribd denies the remaining a llegat ions of Paragraph 13 of the FAC. 14. Paragraph 14 is part ia lly unintelligib le, and on that ground Scribd denies the

alle gat ions in that paragraph because it lacks suffic ient information or belief to answer the alle gat ions contained therein. Scribd admits that it a llows users to search the text of documents uploaded to its website. Scribd admits that its website contains advertis ing and that it rece ives revenue from advert ising. Scribd admits that it complies w ith the DMCA and removes content as required by the DMCA. Scribd lac ks suffic ient information or belie f to answer the a llegat ions relat ing to Mr. Ad ler's quotes absent information about the source of those quotes, and on that ground denies those alle gat ions. Scribd denies the remaining a llegat ions of Paragraph 14 of the FAC. 15. Scribd admits that its service is a va ilable through the World Wide Web and its

website contains a libra ry of works. Sc ribd denies the remaining a llegat ions of Paragraph 15 of the FAC. 16. Some of the alle gat ions in Paragraph 16 appear to be statements of law to which

no response is required, including its c laim of protect ion " guaranteed pursuant to Article 8 of the Un ited States Constitution." Scribd denies the alle gat ions of Paragraph 16 of the FAC. 17. Scribd admits that it is a for-profit company. Scribd lac ks sufficient information

or belief to answer the a llegations re lat ing to Mr. Adle r's quotes absent information about the source of those quotes, and on that ground denies those alle gat ions. Scribd denies the rema ining alle gat ions of Paragraph 17 of the FAC. /// -4SCRIBD, INC.'S ANSWER TO THE FIRST AMENDED COMP LAINT CASE NO. 09-CV-1836-LAB-BGS

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18.

Scribd admits that it does not provide internet access to paying customers and that

it could not and would not replace an individual's internet service provider to provide any consumer access to the Internet. Scribd lac ks suffic ient informat ion or belie f to answer the alle gat ions relat ing to the other defendants, and on that ground denies those allegations. Scribd denies the remaining a llegat ions of Paragraph 18 of the FAC. 19. Scribd no longer uses the " friend" system. Scribd admits that on or around July

2009, Trip Adle r was " friends" with nearly a ll of the users of Scribd's service, as a ll users were automatically " friends" with M r. Ad ler. Users had the option to remove Mr. Ad ler as a " friend." Scribd admits that Mr. Ad ler's picture appeared in conjunction with his account and profile. Scribd admits that Mr. Ad ler is one of Scribd's founders. Scribd lac ks suffic ient information or belief to answer the rema ining a lle gat ions of Paragraph 19 of the FAC, and on that ground denies those alle gat ions. 20. Scribd admits that all documents on its service a re d isplayed in the iPaper format

and that the works that are uploaded are displayed as they appeared when uploaded. Scribd lac ks suffic ient information or belief to answer the a llegations re lat ing to the contents of the unspecified " works" Pla intiff references in Para graph 20 and on that ground denies those alle gat ions. Scribd denies the rema ining a lle gat ions of Paragraph 20 of the FAC. 21. Scribd lacks suffic ient information or belief to answer the a lle gat ions relat ing to

the contents of the unspecified " works" Pla int iff refe rences in Paragraph 21 and on that ground denies those alle gat ions. Scribd denies the remaining a lle gat ions of Paragraph 21 of the FAC. 22. 23. Scribd denies the a llegat ions of Paragraph 22 of the FAC. Scribd lacks suffic ient information or belief to answer the a lle gat ions of

Paragraph 23 of the FAC, and on that ground denies those allegat ions. 24. Scribd admits that it expedit iously removed each document identified by Pla int iff

and/or his publisher upon receiving a take -down notice for that document. Scribd denies the remaining a llegat ions of Paragraph 24 of the FAC. 25. Scribd admits that it has implemented a Copyright Management System (" CMS")

that helps identify and prevent the upload of documents that are not authorized to be uploaded to -5SCRIBD, INC.'S ANSWER TO THE FIRST AMENDED COMP LAINT CASE NO. 09-CV-1836-LAB-BGS

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Scribd's service . Sc ribd admits that the CMS does not guarantee prevention of future infringing activity. Scribd admits that Exhibit D appears to be a printed copy of the web content available at http://support.scribd.com/forums/33563/entries/25445, and that it contains a sentence that reads, " distributing copyrighted content without the copyright owner's permission is copyright infringement even if you give the document away for free." Sc ribd admits that its website contains the sentence, " Each time Scribd rece ives a DMCA-compliant takedown request from a copyright holder, we quickly remove the unauthorized document and add a unique reference file corresponding to that document to our copyright database, deleting pre viously-uploaded copies of the same work identified by the system." Scribd admits that the Terms of Use for its CMS contains the follow ing language : " You hereby expressly rele ase Scribd and its lic ensees from any and all c la ims, demands, liab ilit ies, or causes of act ion whether now known or unknown, for copyright or other proprietary right infringement, violat ion of moral right, and invas ion of the rights to privacy, public ity, or personality or any similar matter, based upon or relat ing to the use and exploitat ion of Up loaded Content in conjunction with the Copyright Management System." Scribd denies the remain ing a lle gat ions of Paragraph 25 of the FAC. 26. Scribd admits that all documents on its website are displayed in the iPaper format.

Scribd admits that Exhibit D appears to be a printed copy of the web content availab le at http://support.scribd.com/forums/33563/entries/25445, and that it contains a sentence that reads, " even if you used your creat ivity to make a new document that contained another person's copyrighted work, you may be liable for copyright infringement." Scribd denies the remain ing alle gat ions of Paragraph 26 of the FAC. 27. Scribd admits that it expedit iously removed a document from its service upon

rece iving a take -down notice for that document. Scribd presently lacks suffic ient information or belief to answer the a llegat ions in Para graph 27 re gard ing the purported number of times various documents were downloaded and/or viewed, and on that ground, denies those allegat ions. Scribd denies the remaining a llegat ions of Paragraph 27 of the FAC. 28. Scribd admits that all documents on its website are displayed in the iPaper format.

Scribd admits that the contents of its website a re a va ilable on the World Wide Web. Scribd -6SCRIBD, INC.'S ANSWER TO THE FIRST AMENDED COMP LAINT CASE NO. 09-CV-1836-LAB-BGS

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admits that it removed documents uploaded by Defendant Galaxiamia a fter rece iving corresponding take-down notices from Pla intiff for those documents. Scribd presently lac ks suffic ient information or belief to answer the a llegations in Paragraph 28 re gard ing the purported number of times various documents were downloaded and/or read, and on that ground, denies those alle gat ions. Scribd denies the rema ining a lle gat ions of Paragraph 28 of the FAC. 29. Scribd admits that it rece ived a subpoena for the identity of Defendant

Galax iamia . Scribd admits that it provided Defendant Galax iamia's Internet Protocol address and e-mail address to Plaint iff, and that the Internet Protocol address provided was associated with a locat ion in Germany. Scribd admits that it does not charge users for uploading and downloading documents for the free portion of its service (i .e., for the portion of its service that is not part of the Scribd Store) and that it is a for-profit company. Scribd admits that it requires a user's e-mail address before that user can upload any document. Scribd denies the rema ining alle gat ions of Paragraph 29 of the FAC. 30. Scribd admits that all documents on its website are displayed in the iPaper format.

Scribd lacks suffic ient information or belief to answer the a lle gat ions relat ing to the date of first publicat ion, how Plaint iff derives his income, and how much he charged for his works, and on that ground denies those alle gat ions. Scribd presently lacks suffic ient information or belief to answer the allegations in Pa ragraph 30 re gard ing the purported number of times various documents were downloaded and/or viewed, and on that ground, denies those allegat ions. Scribd admits that it removed certa in documents from Scribd's service at the request of Pla intiff and/or his representative. Sc ribd denies the remaining a llegat ions of Paragraph 30 of the FAC. 31. Scribd admits that the Un ited States Copyright Office charges $65 for

" Registration of a basic c la im in an origina l work of authorship on Forms PA, SR, TX, VA, SE (paper filing)" and that the " [f]ee to expedite processing of qualified c la ims" is ove r $700. Scribd lacks suffic ient information or belief to answer the rema ining a llegat ions of Paragraph 31 of the FAC, and on that ground denies those allegat ions. 32. Scribd admits that the first take -down notice it rec eived on March 13, 2009 from

Pla intiff was incomplete, and that Scribd requested more information from Plaint iff. Sc ribd -7SCRIBD, INC.'S ANSWER TO THE FIRST AMENDED COMP LAINT CASE NO. 09-CV-1836-LAB-BGS

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admits that after P la intiff provided supplemental information, Scribd removed the document later on March 13, 2009. Scribd admits that its designated agent for ta ke-down notices as noted in Paragraph 32 of the FAC is correct. Scribd denies the remain ing a llegations of Para graph 32 of the FAC. 33. Some of the alle gat ions in Paragraph 33 appear to be statements of law to which

no response is required. Scribd denies the remain ing a lle gat ions of Paragraph 33 of the FAC. 34. Scribd admits that it rece ived take-down notices for " The Secret of Se lect ing

Stocks for Immediate and Substantial Ga ins" on March 30, 2009; March 31, 2009; April 1, 2009; May 12, 2009; and May 15, 2009; those documents were removed expeditiously upon receipt of those take-down notices. Scribd denies the remaining a llegat ions of Paragraph 34 of the FAC. 35. Scribd admits that it rece ived take-down notices for " The Right Stock at the R ight

Time" on March 24, 2009; August 17, 2009; and August 26, 2009; those documents were removed expeditiously upon receipt of those take-down notices. Scribd denies the remain ing alle gat ions of Paragraph 35 of the FAC. 36. Scribd admits that it rece ived take-down notices for Long Term Secret s to Short

Term Trading on March 24, 2009 and May 12, 2009; those documents were removed expeditiously upon receipt of take -down notices. Scribd denies the remain ing a lle gat ions of Paragraph 36 of the FAC. FIRST CLAIM FOR RELIEF (Copyright Infringement ­ 17 U.S.C. § 502) 37. Scribd does not need to answer alle gat ions for Pla intiff's first c la im for relief, as

this claim has been dismissed with prejudice as a ga inst Scribd on June 24, 2010. 38. 39. 40. 41. 42. 43. N/A. N/A. N/A. N/A. N/A. N/A. -8SCRIBD, INC.'S ANSWER TO THE FIRST AMENDED COMP LAINT CASE NO. 09-CV-1836-LAB-BGS

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44. 45.

N/A. N/A. SECOND CLAIM FOR RELIEF (Contributory Copyright Infringement)

46.

Scribd incorporates by reference a ll of the above para graphs of this Answer as

though fully stated here in. 47. The a lle gat ion in Para graph 47 re garding Scribd's alle ged creat ion of a

" derivative work" is a statement of law to which no response is required. Scribd denies that it makes works ava ilab le through a " re-publishing system." Scribd lac ks suffic ient information or belief to answer the a llegat ions re lat ing to other defendants' actions, and on that ground, denies those alle gat ions. Scribd denies the rema ining a lle gat ions of Paragraph 47 of the FAC. 48. Scribd presently lacks suffic ient information or belief to answer the a lle gat ions

relat ing to whether " [c]opyright c la ims were c le arly displayed and obvious on the works" and that " [s]everal of the works were books in excess of 200 pages," and on that ground, denies those alle gat ions. Scribd denies the rema ining a lle gat ions of Paragraph 48 of the FAC. 49. Scribd admits that on its website, it uses the phrases " technology to break barriers

to traditional publishing" and " one of the largest readerships in the world." Scribd lacks suffic ient information or belief to answer the a llegations re lat ing to other defendants' actions, and on that ground, denies those allegations. Scribd denies the remain ing a lle gat ions of Paragraph 49 of the FAC. 50. Scribd no longer uses the " friend" system. Scribd admits that on or around July

2009, Trip Adle r was " friends" with nearly a ll of the users of Scribd's service, as a ll users were automatically " friends" with M r. Ad ler. Users had the option to remove Mr. Ad ler as a " friend." Scribd denies the remain ing a lle gat ions of Paragraph 50 of the FAC. 51. Scribd no longer uses the " friend" system. Scribd admits that on or around July

2009, Trip Adle r was " friends" with nearly a ll of the users of Scribd's service, as a ll users were automatically " friends" with M r. Ad ler. Users had the option to remove Mr. Ad ler as a " friend." Scribd denies the remain ing a lle gat ions of Paragraph 51 of the FAC. -9SCRIBD, INC.'S ANSWER TO THE FIRST AMENDED COMP LAINT CASE NO. 09-CV-1836-LAB-BGS

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52. 53. 54.

Scribd denies the a llegat ions of Paragraph 52 of the FAC. Scribd denies the a llegat ions of Paragraph 53 of the FAC. Scribd lacks suffic ient information or belief to answer the a lle gat ions relat ing to

other defendants' actions and liability, and on that ground, denies those alle gat ions. Scribd denies the remaining a llegat ions of Paragraph 54 of the FAC. 55. Scribd lacks suffic ient information or belief to answer the a lle gat ions relat ing to

other defendants' actions and liability, and on that ground, denies those alle gat ions. Scribd denies the remaining a llegat ions of Paragraph 55 of the FAC. 56. Scribd lacks suffic ient information or belief to answer the a lle gat ions relat ing to

other defendants' actions and liability, and on that ground, denies those alle gat ions. Scribd denies the remaining a llegat ions of Paragraph 56 of the FAC. THIRD CLAIM FOR RELIEF (Vic arious Copyright Infringement) 57. Scribd incorporates by reference a ll of the above para graphs of this Answer as

though fully stated here in. 58. 59. 60. Scribd denies the a llegat ions of Paragraph 58 of the FAC. Scribd denies the a llegat ions of Paragraph 59 of the FAC. Scribd lacks suffic ient information or belief to answer the a lle gat ions relat ing to

other defendants' actions and liability, and on that ground, denies those alle gat ions. Scribd denies the remaining a llegat ions of Paragraph 60 of the FAC. 61. Scribd lacks suffic ient information or belief to answer the a lle gat ions relat ing to

other defendants' actions and liability, and on that ground, denies those alle gat ions. Scribd denies the remaining a llegat ions of Paragraph 61 of the FAC. 62. Scribd lacks suffic ient information or belief to answer the a lle gat ions relat ing to

other defendants' actions and liability, and on that ground, denies those alle gat ions. Scribd denies the remaining a llegat ions of Paragraph 62 of the FAC. ///

-10SCRIBD, INC.'S ANSWER TO THE FIRST AMENDED COMP LAINT CASE NO. 09-CV-1836-LAB-BGS

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63.

Scribd lacks suffic ient information or belief to answer the a lle gat ions relat ing to

other defendants' actions and liability, and on that ground, denies those alle gat ions. Scribd denies the remaining a llegat ions of Paragraph 63 of the FAC. FOURTH CLAIM FOR RELIEF (M isappropriation of the Right of Public ity ­ Cal. Civ. Code § 3344) 64. Scribd incorporates by reference a ll of the above para graphs of this Answer as

though fully stated here in. 65. Scribd lacks suffic ient information or belief to answer the a lle gat ions in

Paragraph 65 of the FAC, and on that ground, denies those allegations. 66. Scribd lacks suffic ient information or belief to answer the a lle gat ions relat ing to

other defendants' actions and liability, and on that ground, denies those alle gat ions. Scribd denies the remaining a llegat ions of Paragraph 66 of the FAC. 67. Scribd lacks suffic ient information or belief to answer the a lle gat ions relat ing to

other defendants' actions and liability, and on that ground, denies those alle gat ions. Scribd denies the remaining a llegat ions of Paragraph 67 of the FAC. 68. Scribd admits that Pla int iff is requesting a restra ining order pursuant to the

equitable powers of this Court. Scribd denies the remaining a llegat ions of Paragraph 68 of the FAC. WHEREFORE, Scribd prays for judgment as follows: 1. 2. That P la intiff ta kes nothing by its rema ining c laims as a ga inst Scribd; That the rema ining c la ims be dismissed in its ent irety w ith prejudice as a ga inst

3.

That Scribd be awarded all fees and costs associated with the cla ims aga inst

4.

That the Court award such other and further relie f as it deems just and proper.

-11SCRIBD, INC.'S ANSWER TO THE FIRST AMENDED COMP LAINT CASE NO. 09-CV-1836-LAB-BGS

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AFFIRMATIVE DEFENSES Pursuant to Rule 8(c) of the Federal Rules of C ivil Procedure, Scribd sets forth the following matters constituting an avo idance or affirmat ive defense: Firs t Affirmative Defens e (Failure to State a Cla im) Pla intiff's FAC fa ils to state a c la im upon which relie f may be granted. Second Affirm ative Defens e (DMCA Safe Ha rbor) Pla intiff's cla ims are barred in whole or in part because Scribd is protected by one

or more of the DMCA Safe Harbors in 17 U.S.C. § 512. Third Affirmative De fens e (No Primary Liab ility) Pla intiff's cla ims based on secondary liability are barred in whole or in part

because Plaint iff cannot establish the primary liab ility of Scribd's users, inc luding but not lim ited because such users' alleged conduct constitutes fair use, de minimus use, and/or is otherwise not actionable. Fourth Affirmative Defens e (Staple Art ic les of Commerce) Pla intiff's cla ims based on secondary liability are barred in whole or in part

because Scribd's products and/or services a re staple art ic les of commerce. Fifth Affirmative De fens e (No Volitiona l Act) Pla intiff's cla ims are barred in whole or in part because the alleged infringement

was not caused by a volit ional a ct attributable to Scribd. ///

-12SCRIBD, INC.'S ANSWER TO THE FIRST AMENDED COMP LAINT CASE NO. 09-CV-1836-LAB-BGS

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Sixth Affirmative De fens e (Lack of Knowledge) Pla intiff's cla ims based on contributory liab ility a re barred in whole or in part

because Scribd did not have the requisite knowledge of the a lleged primary infringement and did not encourage or induce the alle ged primary infringement. Seventh Affirmative De fens e (No Direct F inancia l Benefit) Pla intiff's cla ims based on vicarious liab ility are barred in whole or in part

because Scribd did not obtain a direct financia l benefit from the alleged primary infringement. Eighth Affirmative Defens e (No Right or Ab ility to Control) Pla intiff's cla ims based on vicarious liab ility are barred in whole or in part

because Scribd does not have the right or ab ility to control the alleged primary infringement. Ninth Affirmative Defens e (License) Pla intiff's cla ims are barred in whole or in part by licenses, express and implied,

granted or authorized to be granted by Plaintiff. Tenth A ffirmative Defens e (Consent or Acquiescence) Pla intiff's cla ims are barred in whole or in part by Pla intiff's consent and

acquiescence to Scribd's use. Eleventh Affirmative Defens e (Fair Use) Pla intiff's cla ims are barred in whole or in part by the doctrine of fair use. Twelfth Affirm ative Defens e (Failure to M it igate) Pla intiff's cla ims are barred in whole or in part because Pla intiff has fa iled to

mitigate h is damages, if any. -13SCRIBD, INC.'S ANSWER TO THE FIRST AMENDED COMP LAINT CASE NO. 09-CV-1836-LAB-BGS

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Thirteenth Affirm ative Defens e (Laches) Pla intiff's cla ims are barred in whole or in part by the doctrine of laches. Fourteenth Affirm ative Defens e (Waiver) Pla intiff's cla ims are barred in whole or in part by the doctrine of waiver. Fifteenth Affirm ative Defens e (Estoppel) Pla intiff's cla ims are barred in whole or in part by the doctrine of estoppel. Sixteenth Affirmative Defens e (Unc lean Hands) Pla intiff's cla ims are barred in whole or in part by the doctrine of unclean hands. Seventeenth Affirm ative Defens e (Substantial Non-infringing Use ) Pla intiff's cla ims are barred in whole or in part by the doctrine of substantial non-

infringing use, a lthough Scribd submits that Plaint iff bears the burden of proving the doctrine's inapplicability. Eighteenth Affirmative De fens e (Inva lidity and Unenforceability of Copyright) Pla intiff's cla ims are barred in whole or in part because one or more of Pla int iff's

copyrights are inva lid and/or unenforceable. Nineteenth Affirmative De fens e (Lack of Subject Matter Jurisd ict ion) Pla intiff's cla ims are barred in whole or in part for lac k of subject matter

jurisdict ion to the extent that Pla intiff lac ks va lid re gistrat ions for the intelle ctual property rights asserted. ///

-14SCRIBD, INC.'S ANSWER TO THE FIRST AMENDED COMP LAINT CASE NO. 09-CV-1836-LAB-BGS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26. 25. 24. 23. 22. standing. 21. 20.

Twentieth Affirm ative Defens e (Abandonment and Forfeiture) Pla intiff's cla ims are barred in whole or in part to the extent that Plaint iff has

forfe ited or abandoned his intellectua l property. Twenty-firs t Affirm ative Defens e (Failure to Register) Pla intiff's cla ims are barred in whole or in part to the extent that Plaint iff has not

properly or timely registered his works w ith the U.S. Copyright Office. Twenty-s econd Affirmative Defens e (Standing) Pla intiff's cla ims are barred in whole or in part to the extent that Plaint iff lacks

Twenty-third A ffirmative Defens e (M isuse of Copyright) Pla intiff's cla ims are barred by the doctrine of misuse of copyright. Twenty-fourth A ffirmative Defens e (Innocent Intent) Pla intiff's cla ims are barred in whole or in part because Scribd's conduct was in

good faith and with non-willfu l intent, at a ll t imes. Twenty-fi fth Affirmative De fens e (Unconstitutionality) The statutory damages sought by Plaintiff is unconstitutionally excessive and

disproportionate to any actual damages that may have been sustained, in violat ion of the Due Process Clause. Twenty-s ixth Affirmative Defens e (Statute of Lim itat ions) Pla intiff's cla ims are barred in whole or in part to the extent that they are barred

by the statute of limitat ions. -15SCRIBD, INC.'S ANSWER TO THE FIRST AMENDED COMP LAINT CASE NO. 09-CV-1836-LAB-BGS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: July 8, 2010 30. 29. 28. 27.

Twenty-s eventh Affirmative Defens e (First Amendment) Pla intiff's cla ims are barred in whole or in part to the extent that Scribd's actions

and speech are protected by the First Amendment of the Constitution of the United States. Twenty-eighth Affirmative De fens e (Preemption by Communications Decency Act) Pla intiff's misappropriation claim is preempted by Section 230 of the

Communications Decency Act, 47 U.S.C. § 230(c). Twenty-ninth A ffirmative Defens e (Preemption by Copyright Act) Pla intiff's misappropriation claim is preempted by the Copyright Act, Tit le 17 of

the United States Code. Thirtieth Affirm ative Defens e (Reservat ion of Rights and Additional De fenses) Scribd has insufficient knowledge or information on which to form a belief as to

whether it may have addit ion, as yet unstated, affirmative defenses ava ilab le in this act ion. Scribd therefore rese rves the right to assert additional affirmative defenses in the event discovery indicates that they may be appropriate DEMAND FOR JURY TRIAL In accordance with Federal Rules of C ivil P rocedure Rule 38(b), Scribd demands a trial by jury on all issues so triab le.

Respectfully submitted, GORDON & REES LLP by _/s/ Richard P. Sybert/ Richard P. Sybert Yuo-Fong C. Amato Attorneys for Defendant SCRIBD, INC. -16SCRIBD, INC.'S ANSWER TO THE FIRST AMENDED COMP LAINT CASE NO. 09-CV-1836-LAB-BGS

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A CEW/1060327/814 6928v .1

CERTIFICA TE OF SERVICE I hereby certify that on July 8, 2010, the forego ing document, DEFENDANT SCRIBD, INC.'S ANSWER TO THE FIRS T AMENDED COMPLAIN T was filed e lect ronica lly via the Court's Electronic Case F iling System (ECF). The file transmission was reported as successful and a copy of the Electronic Case F iling Rece ipt w ill be mainta ined with the origina l document(s) in our office. Notice of the filing is being served upon all counsel of record automatically through Notice of Electronic F iling: Kurt W. Hallock Law Offic e of Kurt W. Ha llock 110 West C Street, Su ite 1905 San Diego, CA 92101 Te l [phone] Fax [phone] Email: kwha llock@ha llocktria llaw.com Attorne y for Plaintiff Larr y Williams I decla re under penalty of perjury under the laws of the State of Ca lifornia and the United States that the above is true and correct. Executed on July 8, 2010 at San D iego, Ca liforn ia. _______________________ Yuo-Fong C. Amato

-17SCRIBD, INC.'S ANSWER TO THE FIRST AMENDED COMP LAINT CASE NO. 09-CV-1836-LAB-BGS