PARKER v. YAHOO!, INC. et al

Filing 24

ANSWER to 3 Complaint together with, Affirmative Defenses, and Counterclaims to Plaintiff's Remaining Claim, COUNTERCLAIM against GORDON ROY PARKER by YAHOO!, INC, Certificate of Service.(FIELD, COREY) Modified on 10/15/2008 (fh)

PARKER v. YAHOO!, INC. et al

Doc. 24

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA GORDON ROY PARKER, Plaintiff, Pro Se v. YAHOO!, INC. and MICROSOFT CORPORATION, Defendants. ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 07-2757 (MAM) JURY TRIAL DEMANDED

ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS OF YAHOO!, INC. TO PLAINTIFF'S REMAINING CLAIM Defendant Yahoo!, Inc. ("Yahoo!"), by and through its attorneys, hereby answers the Complaint of Plaintiff Gordon Roy Parker ("Plaintiff" or "Parker").1 Plaintiff's allegations as follows: AS TO THE ALLEGATIONS CONCERNING THE PARTIES 1. Yahoo! denies having any knowledge or information sufficient to form a belief as Yahoo! responds to

to the truth of the allegations contained in paragraph 1 of the Complaint. 2. Yahoo! admits the allegations contained within paragraph 2 to the extent that

Yahoo! is a corporation incorporated in Delaware with a location in Sunnyvale, California.

Because this Court dismissed Count I (in part) and Counts II through IV (in whole) on September 26, 2008 ("the Order"), Yahoo! does not answer Plaintiff's Complaint with respect to those claims. The remaining claim to which Yahoo! responds is that of direct copyright infringement related to the caching and display of Plaintiff's website content subsequent to the filing of this lawsuit. Yahoo! incorporates by reference its Motion to Dismiss dated November 26, 2007 and Supplemental Motion to Dismiss dated July 18, 2008, and the Order in denying Plaintiff's claims.

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3.

Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 3 of the Complaint. AS TO THE ALLEGATIONS CONCERNING THE NATURE OF THE COMPLAINT AND STATEMENT OF JURISDICTION 4. Yahoo! denies the allegations contained in paragraph 4 of the Complaint, and

admits only that the sole claim remaining in the case pursuant to the Order is one for direct infringement of copyright. 5. Yahoo! denies the allegations contained in paragraph 5 of the Complaint, and

admits only that this District may exercise jurisdiction under 17 U.S.C. § 501 and 28 U.S.C. §§ 1331, 1338, and 2201. 6. Yahoo! denies the allegations contained in paragraph 6 of the Complaint, and

admits only that it has not contested personal jurisdiction in this District. 7. Yahoo! denies the allegations contained in paragraph 7 of the Complaint, and

admits only that it has not contested personal jurisdiction in this District. 8. Yahoo! denies the allegations contained in paragraph 8 of the Complaint, and

admits only that venue in this District is proper. AS TO THE ALLEGATIONS CONCERNING BACKGROUND 9. forth herein. 10. Yahoo! denies having any knowledge or information sufficient to form a belief as Yahoo! incorporates by reference the contents of paragraphs 1-8 as if fully set

to the truth of the allegations contained in paragraph 10 of the Complaint. 11. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 11 of the Complaint.

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12.

Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 12 of the Complaint. 13. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 13 of the Complaint. 14. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 14 of the Complaint. 15. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 15 of the Complaint. 16. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 16 of the Complaint. 17. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 17 of the Complaint. 18. 19. Yahoo! denies the allegations contained in paragraph 18 of the Complaint. Yahoo! denies the allegations contained in paragraph 19 of the Complaint, and

admits only that it is a publicly traded company. 20. Yahoo! denies the allegations contained in paragraph 20 of the Complaint, and

admits only that it operates an Internet search engine. 21. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 21 of the Complaint. 22. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 22 of the Complaint.

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23.

Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 23 of the Complaint, and specifically denies providing any "unauthorized, exact copy of Plaintiff's website." 24. Yahoo! denies the allegations contained in paragraph 24 of the Complaint, except

admits that Yahoo! provides for a variety of procedures where an alleged copyright holder could effectively "opt out" of having particular Internet pages appear as search results. 25. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 25 of the Complaint. 26. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 26 of the Complaint. 27. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 27 of the Complaint. 28. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 28 of the Complaint. 29. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 29 of the Complaint. 30. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 30 of the Complaint. 31. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 31 of the Complaint. 32. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 32 of the Complaint.

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33.

Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 33 of the Complaint. 34. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 34 of the Complaint. 35. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 35 of the Complaint. 36. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 36 of the Complaint. 37. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 37 of the Complaint. 38. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 38 of the Complaint. 39. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 39 of the Complaint. 40. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 40 of the Complaint. 41. 42. Yahoo! denies the allegations contained in paragraph 41 of the Complaint. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 42 of the Complaint. 43. Yahoo! denies having any knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 43 of the Complaint. 44. Yahoo! denies the allegations contained in paragraph 44 of the Complaint.

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AS TO THE ALLEGATIONS CONCERNING COUNT I DIRECT COPYRIGHT INFRINGEMENT 45. forth herein. 46. Yahoo! denies having information or knowledge sufficient to form a belief as to Yahoo! incorporates by reference the contents of paragraphs 1-44 as if fully set

the truth of the allegations contained in paragraph 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. Yahoo! denies the allegations contained in paragraph 47 of the Complaint. Yahoo! denies the allegations contained in paragraph 48 of the Complaint. Yahoo! denies the allegations contained in paragraph 49 of the Complaint. Yahoo! denies the allegations contained in paragraph 50 of the Complaint. Yahoo! denies the allegations contained in paragraph 51 of the Complaint. Yahoo! denies the allegations contained in paragraph 52 of the Complaint. Yahoo! denies the allegations contained in paragraph 53 of the Complaint. Yahoo! denies the allegations contained in paragraph 54 of the Complaint. Yahoo! denies the allegations contained in paragraph 55 of the Complaint. Yahoo! denies the allegations contained in paragraph 56 of the Complaint. Yahoo! denies the allegations contained in paragraph 57 of the Complaint.

AS TO THE ALLEGATIONS CONCERNING COUNTS II-III, CONTRIBUTORY AND VICARIOUS COPYRIGHT INFRINGEMENT 58. By the Order, Plaintiff's claims for contributory and vicarious copyright

infringement, reflected at paragraphs 58-65 of Plaintiff's Complaint, were dismissed with prejudice.

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AS TO THE ALLEGATIONS CONCERNING COUNT IV-V BREACH OF CONTRACT/NEGLIGENCE 59. By the Order, Plaintiff's claims for breach of contract and negligence, reflected at

paragraphs 66 -75 of Plaintiff's Complaint, were dismissed with prejudice. AS TO THE ALLEGATIONS CONCERNING THE PRAYER FOR RELIEF 60. Yahoo! denies the allegations contained in paragraph 1 of Plaintiff's Prayer for

Relief, and contends that Plaintiff is not entitled to any relief sought therein. 61. Yahoo! denies the allegations contained in paragraph 2 of Plaintiff's Prayer for

Relief, and contends that Plaintiff is not entitled to any relief sought therein. 62. Yahoo! denies the allegations contained in paragraph 3 of Plaintiff's Prayer for

Relief, and contends that Plaintiff is not entitled to any relief sought therein. 63. Yahoo! denies the allegations contained in paragraph 4 of Plaintiff's Prayer for

Relief, and contends that Plaintiff is not entitled to any relief sought therein. 64. Yahoo! denies the allegations contained in paragraph 5 of Plaintiff's Prayer for

Relief, and contends that Plaintiff is not entitled to any relief sought therein. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim for Relief) 65. Plaintiff has failed to state a claim upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE (Statute of Limitations) 66. Plaintiff's claims are barred by the applicable statute of limitations.

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THIRD AFFIRMATIVE DEFENSE (Lack of Subject Matter Jurisdiction/Failure to Register) 67. Plaintiff's claims are barred for a lack of subject matter jurisdiction because he

lacks valid copyright registrations for the intellectual property rights asserted, or has not properly or timely registered his works. FOURTH AFFIRMATIVE DEFENSE (Fair Use) 68. Plaintiff's claims are barred by the doctrine of fair use. FIFTH AFFIRMATIVE DEFENSE (Laches) 69. Plaintiff's claims are barred by the doctrine of laches. SIXTH AFFIRMATIVE DEFENSE (Estoppel) 70. Plaintiff's claims are barred by estoppel. SEVENTH AFFIRMATIVE DEFENSE (Unclean Hands) 71. Plaintiff's claims are barred by the doctrine of unclean hands. EIGHTH AFFIRMATIVE DEFENSE (Waiver) 72. Plaintiff's claims are barred by waiver. NINTH AFFIRMATIVE DEFENSE (Invalidity or Unenforceability of Copyright) 73. Plaintiff's copyrights are invalid and/or unenforceable. TENTH AFFIRMATIVE DEFENSE (Safe Harbor) 74. Plaintiff's claims are barred under the Digital Millennium Copyright Act,

17 U.S.C. § 512.

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ELEVENTH AFFIRMATIVE DEFENSE (Authorized Use) 75. Plaintiff authorized, impliedly or explicitly, Yahoo!'s allegedly infringing use of

his works, and his claims are therefore barred by the doctrine of implied license. TWELFTH AFFIRMATIVE DEFENSE (Collateral Estoppel) 76. Plaintiff is barred from bringing his direct infringement claim as Plaintiff

previously litigated this identical issue in Parker v. Google, 422 F. Supp. 2d 492 (E.D. Pa. 2006), aff'd mem., 242 Fed. Appx. 833 (3d Cir. 2007). THIRTEENTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) 77. To the extent Plaintiff suffered any damages, which Yahoo! expressly denies,

Plaintiff has failed to take the steps necessary to mitigate the damages sustained. FOURTEENTH AFFIRMATIVE DEFENSE (Forfeiture or Abandonment) 78. Plaintiff's claims are barred to the extent he has forfeited or abandoned his

intellectual property. FIFTEENTH AFFIRMATIVE DEFENSE (Misuse of Copyright) 79. Plaintiff's claims are barred by the doctrine of misuse of copyright. SIXTEENTH AFFIRMATIVE DEFENSE (Substantial Non-Infringing Use) 80. Plaintiff's claims are barred because Plaintiff cannot establish that Yahoo!'s

service is incapable of substantial non-infringing use.

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SEVENTEENTH AFFIRMATIVE DEFENSE (License, Consent, and Acquiescence) 81. Yahoo!'s use. EIGHTEENTH AFFIRMATIVE DEFENSE (Innocent Intent) 82. Plaintiff's claims are barred, in whole or in part, because Yahoo!'s conduct was in Plaintiff's claims are barred by Plaintiff's license, consent, and acquiescence to

good faith and with non-willful intent, at all times. NINETEENTH AFFIRMATIVE DEFENSE (17 U.S.C. § 109 and Exhaustion) 83. Plaintiff's claims are barred under 17 U.S.C. § 109 and the doctrine of exhaustion. TWENTIETH AFFIRMATIVE DEFENSE (Lack of Volitional Act) 84. Plaintiff's claims are barred because the alleged infringement was not caused by a

volitional act attributable to Yahoo! TWENTY-FIRST AFFIRMATIVE DEFENSE (Unconstitutionally Excessive Damages) 85. Plaintiff's claims are barred because statutory damages sought are

unconstitutionally excessive and disproportionate to any actual damages that may have been sustained in violation of the Due Process clause. TWENTY-SECOND AFFIRMATIVE DEFENSE (First Amendment) 86. Plaintiff's claims are barred to the extent that Yahoo!'s actions and speech are

protected by the First Amendment of The Constitution of the United States.

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ADDITIONAL DEFENSES 87. Yahoo! reserves the right to supplement or amend this answer, including through

the addition of further affirmative defenses, based upon the course of discovery and proceedings in this action. COUNTERCLAIMS PARTIES 1. Defendant/Counterclaimant Yahoo! is a Delaware corporation with its

headquarters in Sunnyvale, California. 2. Plaintiff/Counterclaim-Defendant Gordon Roy Parker is, upon information and

belief, an individual residing at 4247 Locust Street, Philadelphia, Pennsylvania. JURISDICTION AND VENUE 3. This Court has subject matter jurisdiction over the above counterclaims pursuant

to 28 U.S.C. §§ 1331, 1338, 1367, 2201, and 2202 as the counterclaims are so related to the claims in the original action that they form part of the same case or controversy under Article III of the United States Constitution, and arise out of common facts, transactions, or occurrences as provided under Fed. R. Civ. P. 13 and 20. 4. 5. § 1391. This Court has personal jurisdiction over Plaintiff. Venue in this District is proper over this counterclaim pursuant to 28 U.S.C.

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BACKGROUND 6. Plaintiff purportedly holds copyrights to three works that he has previously

published and provided free of charge to users online.2 7. Plaintiff has provided no proof of valid copyright ownership for any of the three

named works in his Complaint. 8. Yahoo! created and operates a search engine which allows users to quickly and

efficiently sift through the massive amounts of information contained on the Internet. 9. As part of this process, Yahoo! utilizes computer programs to "crawl," index, and

cache, or temporarily store, a large portion of the content that exists on the Internet. 10. Cached versions of webpages are kept only temporarily and are used to facilitate

individual users' searches and increase the speed with which Yahoo! returns results. 11. Yahoo! provides a clear and simple policy and/or procedures by which website

creators or operators can prevent Yahoo! from crawling, indexing, or caching a particular website. 12. Plaintiff is (and was) aware of the search functionality and operation of Yahoo!'s

search engine, Plaintiff is (and was) aware of the electronic protocols by which a website creator or operator can prevent Yahoo! from creating a cached copy of a particular webpage, and Plaintiff desired his website to be cached by Yahoo! 13. Plaintiff alleges that the limited caching performed by Yahoo! infringes his

copyrights, yet Plaintiff did not provide Yahoo! with any notice of the alleged infringement prior to filing suit.

These works are "29 Reasons Not To Be a Nice Guy," "Outfoxing the Foxes," and "Why Hotties Choose Losers." Mr. Parker also alleges in the Complaint that there may be other works to which he would assert copyright protection.

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14.

Plaintiff purposely chose not to "opt out" of Yahoo!'s indexing and caching

procedures for the sole purpose of concocting his direct infringement claim. 15. Plaintiff's failure to utilize Yahoo!'s "opt out" procedures creates an implied

license for Yahoo!'s limited caching of Plaintiff's website. 16. Plaintiff purposely designed his website, www.cybersheet.com with Microsoft's

"Frontpage" software. 17. cache. 18. Plaintiff placed no restrictions on who could access his website, or how often his Plaintiff purposely did not employ aspects of this software to prevent search and

website could be accessed. 19. Upon information and belief, Plaintiff has generated no revenue from the

exploitation of the intellectual property allegedly at issue. 20. By Plaintiff's own admission, other entities and individuals have exploited

Plaintiff's works allegedly at issue here 21. content. 22. Yahoo!'s alleged conduct is entitled to protection under the safe harbor provision Yahoo!'s alleged conduct is a permissible fair use of Mr. Parker's website

of the Digital Millennium Copyright Act, 17 U.S.C. § 512. FIRST COUNTERCLAIM Misuse of Copyright 23. Yahoo! repeats and realleges all foregoing allegations made in its affirmative

defenses and counterclaims as if fully set forth herein. 24. Arts." Copyright protection exists "to promote the Progress of Science and the useful

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25.

Copyrights should not be enforced when such enforcement does not fulfill the

Constitutional purpose of copyright protection. 26. website. 27. 28. Plaintiff did nothing to restrict access to his allegedly copyrighted works. Plaintiff failed to make use of the myriad "opt out" procedures publicized by Plaintiff intentionally made his allegedly copyrighted works available free on his

Yahoo! and other Internet providers. 29. Plaintiff affirmatively took these steps to ensure that his allegedly copyrighted

works would be searched, indexed, and cached by Yahoo!, with the intent that such use by Yahoo! might form the basis of an infringement claim. 30. Plaintiff's use of his intellectual property does not comport with the

Constitutional purposes of copyright protection. 31. Plaintiff has misused his copyrights in the following works "Why Hotties Choose

Losers", "Outfoxing the Foxes", or "29 Reasons Not To Be a Nice Guy". 32. As a result of Plaintiff's misuse of his copyrights, Plaintiff's copyrights should be

invalidated, and Yahoo! is entitled to any damages and/or appropriate attorneys' fees and costs, to be determined at trial. SECOND COUNTERCLAIM Declaratory Judgment of Fair Use 33. Yahoo! repeats and realleges all foregoing allegations made in its affirmative

defenses and counterclaims as if fully set forth herein. 34. There is an actual and justiciable controversy between the parties regarding the

alleged direct copyright infringement.

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35.

Yahoo! seeks a declaratory judgment of this Court that Yahoo!'s searching,

indexing, and caching of Plaintiff's website constitutes a fair use. 36. Yahoo! did not attempt to profit from its use of Plaintiff's works, and did not in

fact profit from any use of Plaintiff's intellectual property. 37. 38. Plaintiff knew that his website would be included in Yahoo!'s cache. Yahoo!'s use serves a utilitarian purpose, namely to help improve access to

websites on the Internet, among other things. 39. Yahoo!'s use has caused no damage to Plaintiff, nor has it adversely affected the

value of Plaintiff's works allegedly at issue in this action. 40. 41. Plaintiff has lost no revenue as a result of Yahoo!'s alleged use. Yahoo!'s use has had no effect on the market for, or any value of, Plaintiff's

works allegedly at issue in this action. 42. Yahoo! is entitled to a declaratory judgment pursuant to 28 U.S.C. § 2201 that the

operation of Yahoo! Search with respect to Plaintiff's works is a fair use under copyright law. THIRD COUNTERCLAIM Declaratory Judgment of Implied License 43. Yahoo! repeats and realleges all foregoing allegations made in its affirmative

defenses and counterclaims as if fully set forth herein. 44. There is an actual and justiciable controversy between the parties regarding the

alleged direct copyright infringement. 45. Plaintiff intentionally posted his allegedly copyrighted works on the Internet such

that they would be searched, indexed, and cached by Yahoo! 46. There are numerous methods by which Plaintiff could have prevented, or "opted

out" of, searching, indexing, or caching of his website by Yahoo!

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47. none of them. 48.

Plaintiff was aware of these available "opt out" methods and took advantage of

Yahoo! provides clear and apparent instructions concerning the implementation of

such procedures. 49. Plaintiff's knowing and intentional choice not to implement any of the available

opt out procedures -- whether available through Yahoo! or through other readily accessible methods -- constitutes an implied license of Plaintiff's works for inclusion in Yahoo! results. 50. Yahoo! is entitled to a declaratory judgment pursuant to 28 U.S.C. § 2201 that

Yahoo! has an implied license to include Plaintiff's writings in the normal operation of Yahoo!'s cache. FOURTH COUNTERCLAIM Declaratory Judgment of Non-Infringement 51. Yahoo! repeats and realleges all foregoing allegations made in its affirmative

defenses and counterclaims as if fully set forth herein. 52. There is an actual and justiciable controversy between the parties regarding the

alleged direct copyright infringement. 53. Yahoo! has not continued its allegedly infringing behavior with respect to

Plaintiff's alleged works: "Why Hotties Choose Losers", "Outfoxing the Foxes", and "29 Reasons Not To Be a Nice Guy". 54. 55. use. 56. Yahoo! is entitled to a declaratory judgment pursuant to 28 U.S.C. § 2201 that None of these works are currently in the Yahoo! cache. Any searching, indexing, or caching that occurred constitutes a non-infringing

Yahoo! has not infringed on any of Plaintiff's allegedly copyrighted works.

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FIFTH COUNTERCLAIM Declaratory Judgment of Invalid Copyrights 57. Yahoo! repeats and realleges all foregoing allegations made in its affirmative

defenses and counterclaims as if fully set forth herein. 58. There is an actual and justiciable controversy between the parties regarding the

alleged direct copyright infringement. 59. As stated above, Plaintiff has provided no proof of valid copyright registration of

his works "Why Hotties Choose Losers", "Outfoxing the Foxes", or "29 Reasons Not To Be a Nice Guy". 60. Without proof of valid copyright registration, Plaintiff cannot assert a claim of

direct copyright infringement against Yahoo! 61. Yahoo! is entitled to a declaratory judgment pursuant to 28 U.S.C. § 2201 that

Plaintiff's copyrights are invalid and unenforceable.

WHEREFORE, Defendant/Counterclaimant asks the Court for the judgment as follows: A. be invalidated; B. That this Court declare that Defendant/Counterclaimant has not directly infringed That this Court find that Plaintiff has misused his copyrights and that they should

Plaintiff's copyrighted works; C. invalid; D. That this Court declare that Plaintiff granted an implied license for use of his That this Court declare that Plaintiff's copyrighted works are unenforceable and

copyrighted works; E. That this Court declare that Defendant/Counterclaimant's use of Plaintiff's

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copyrighted works constitutes fair use; F. That Defendant/Counterclaimant be awarded its costs and attorneys' fees with

respect to this action; G. That Defendant/Counterclaimant be awarded all damages that it has sustained as a

consequence of Counterclaim Defendant's acts complained of herein; and H. For such other and further relief as the Court deems appropriate.

Respectfully submitted, /s/ Corey Field Lynn E. Rzonca (Pa. ID. No. 86747) Corey Field (Pa. ID. No. 88650 (cf 2939) BALLARD SPAHR ANDREWS & INGERSOLL LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103 TEL: [phone] FAX: [phone] [e-mail] [e-mail] -andThomas P. Lane (admitted pro hac vice) WINSTON & STRAWN LLP 200 Park Avenue New York, New York 10166 [phone] [e-mail] Attorneys for Defendant Yahoo! Dated: Philadelphia, Pennsylvania October 10, 2008

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DEMAND FOR A JURY TRIAL Pursuant to Fed. R. Civ. P. 38, Defendant/Counterclaimant demands a jury trial on all claims which are triable to a jury in this action. Respectfully submitted, /s/ Corey Field Lynn E. Rzonca (Pa. ID. No. 86747) Corey Field (Pa. ID. No. 88650 (cf 2939) BALLARD SPAHR ANDREWS & INGERSOLL LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103 TEL: [phone] FAX: [phone] [e-mail] [e-mail] -andThomas P. Lane (admitted pro hac vice) WINSTON & STRAWN LLP 200 Park Avenue New York, New York 10166 [phone] [e-mail] Attorneys for Defendant Yahoo! Dated: Philadelphia, Pennsylvania October 10, 2008

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NY:1202423.5

CERTIFICATE OF SERVICE

I, Corey Field, certify that a true and correct copy of the foregoing ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS OF YAHOO!, INC. TO PLAINTIFF'S REMAINING CLAIM, was filed electronically on the date shown. Notice of this filing will be sent to the following parties by operation of the Court's electronic filing system. Parties may view and download this filing through the Court's system. Copies of the foregoing are also being served on this date via the manner indicated. VIA FIRST CLASS MAIL, POSTAGE PREPAID: Gordon Roy Parker 4247 Locust Street, #806 Philadelphia, PA 19104 [phone] [e-mail] Plaintiff, Pro Se James D. Cashel MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP 123 South Broad Street Philadelphia, PA 19109 [phone] (215 772-7620 (facsimile) Attorneys for Defendant Microsoft Corporation

/s/ Corey Field Corey Field (Pa. ID. No. 88650) (cf2939) BALLARD SPAHR ANDREWS & INGERSOLL, LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103 TEL: [phone] FAX: [phone] [e-mail] Attorneys for Defendant Yahoo!, Inc. Date: October 10, 2008