Sample Federal Court Pleadings – Northern District California

Introduction

If your company is sued in Federal Court by a software company (ex. in California in the Central District, Eastern or Northern District, or Southern District, or in Arizona District Court) the following is a sample of the “Answer” you would file.  Your answer would normally raise all of the possible “Affirmative Defenses” you have.  This is not a complete list of all possible theories, but can serve as a good template to start your response to the willful copyright infringement lawsuit.  The template is intended for use by other intellectual property lawyers.

Bonus: follow this link to see our sample defenses to raise in a copyright infringement lawsuit.

Click here to go to ScribD to purchase a clean copy in editable WORD format

Sample Answer and Affirmative Defense to Copyright Infirngement Complaint by Steve Vondran

Sample Answer with Affirmative Defenses

Copyright Attorney, Esq. (SBN XXXXXX)

[email protected]

Copyright Piracy Law Firm

One Sansome Street, Ste. 3500

San Francisco, CA 94104

Phone: (415) XXX-XXXX

Fax: (510) XXX-XXXX

Attorney for Defendant: Appollo Architect & Engineering Company

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

SOFTWARE COMPANY., a California Corporation,

Plaintiff,

vs.

ALLEGED SOFTWARE PIRATE, a New York Company,

Defendant.

Case No.: XXXXXXXXXX

Assigned to Hon. Judge XXXXXXX

ANSWER TO COMPLAINT AND AFFIRMATIVE DEFENSES

Demand for jury trial

ANSWER AND AFFIRMATIVE DEFENSES

COMES NOW XXXXXXX (“Defendant”) answering the Complaint filed by XXXXXX alleging willful copyright infringement by responding as set forth below, and Defendant raises affirmative defenses as follows:

JURISDICTION AND VENUE

1. Defendant admits the allegations of the nature of the case in paragraph 1.
2. Defendant admits the allegations of subject matter jurisdiction in paragraph two (2).
3. Defendant denies that this Court has subject matter jurisdiction or personal jurisdiction as alleged in paragraph 3. 4.              Answering paragraph 4 of the Complaint, Defendant lacks information sufficient to form a belief as to the facts alleged, and on that basis, Defendant denies them. 5.              Answering paragraph 5 of the Complaint, Defendant lacks information sufficient to form a belief as to the facts alleged, and on that basis, Defendant denies them. 6.              Answering paragraph 6 of the Complaint, Defendant lacks information sufficient to form a belief as to the facts alleged, and on that basis, Defendant denies them.

GENERAL ALLEGATIONS

1. Answering paragraph 7 of the Complaint, Defendant lacks information sufficient to form a belief as to the facts alleged, and on that basis, Defendant denies them. 8.              Answering paragraph 8 of the Complaint, Defendant lacks information sufficient to form a belief as to the facts alleged, and on that basis, Defendant denies them. 9.              Answering paragraph 9 of the Complaint, Defendant lacks information sufficient to form a belief as to the facts alleged, and on that basis, Defendant denies them. 10.           Answering paragraph 10 of the Complaint, Defendant denies the allegations set forth therein. 11.           Defendant denies that an injunction is warranted, or lawful.

THE SOFTWARE PRODUCTS AND COPYRIGHTS AT ISSUE

1. Answering paragraph 12 of the Complaint, Defendant lacks information sufficient to form a belief as to the facts alleged, and on that basis, Defendant denies them. 13.         Answering paragraph 13 of the Complaint, Defendant lacks information sufficient to form a belief as to the facts alleged, and on that basis, Defendant denies them. 14.          Answering paragraph 14 of the Complaint, Defendant lacks information sufficient to form a belief as to the facts alleged, and on that basis, Defendant denies them. 15.          Answering paragraph 15 of the Complaint, Defendant lacks information sufficient to form a belief as to the facts alleged, and on that basis, Defendant denies them. 16.          Answering paragraph 16 of the Complaint, Defendant lacks information sufficient to form a belief as to the facts alleged, and on that basis, Defendant denies them.

THE BUSINESS AND INFRINGING ACTIVITIES OF DEFENDANT

1. Answering paragraph 17 of the Complaint, Defendant denies them. Although admit they are an architect and planning firm. 18.           Answering paragraph 18 of the Complaint, Defendant Defendant denies them. 19.          Defendant denies the allegations of paragraph 19. 20.          Defendant denies the allegations of paragraph 20. 21.          Defendant denies the allegations of paragraph 21.

COPYRIGHT INFRINGEMENT CAUSE OF ACTION

1. Defendant admits the allegations of paragraph 22.
2. Defendant denies the allegations of paragraph 23.
3. Defendant denies the allegations of paragraph 24.
4. Defendant denies the allegations of paragraph 25.

DMCA CIRCUMVENTION OF COPYRIGHT PROTECTION

1. Defendant admits the allegations of paragraph 26.
2. Answering paragraph 27 of the Complaint, Defendant lacks information sufficient to form a belief as to the facts alleged, and on that basis, Defendant denies them. 28.           Defendant denies the allegations of paragraph 28. 29.           Defendant denies the allegations of paragraph 29. 30.           Defendant denies the allegations of paragraph 30.

PRAYER FOR RELIEF

1. Defendant denies Plaintiff is entitled to any relief, including any request for a preliminary injunction as set forth in section 1 (a)-(d)(i-iii) and section 2 of the prayer for relief.
2. Defendant denies Plaintiff is entitled to any monetary damages claimed in Section 3 of their prayer for relief.
3. Defendant denies Plaintiff is entitled to any monetary damages claimed in Section 4 of their prayer for relief.
4. Defendant denies Plaintiff if entitled to any relief requested in Section 5 of their prayer for relief.
5. Defendants denies Plaintiff is entitled to any relief sought in section 6 of their prayer for relief.
6. Defendants denies Plaintiff is entitled to any relief sought in section 7 of their prayer for relief.
7. Defendants denies Plaintiff is entitled to any relief sought in section 8 of their prayer for relief.
8. Defendants denies Plaintiff is entitled to any relief sought in section 9 of their prayer for relief.
9. Defendant joins Plaintiff in the request for a jury trial.

AFFIRMATIVE DEFENSES

Defendant hereby assets the following Affirmative Defenses in this case:

                                              FIRST AFFIRMATIVE DEFENSE

1. Plaintiffs fail to state a claim against Defendant on which relief can be granted.

                                             SECOND AFFIRMATIVE DEFENSE                  

1. One or more third parties are liable for the conduct alleged and will be required to answer and indemnify.                                     THIRD AFFIRMATIVE DEFENSE
2. Defendant has one or more license(s).                                      FOURTH AFFIRMATIVE DEFENSE
3. Plaintiff's have authorized and consented to software usage.                                          FIFTH AFFIRMATIVE DEFENSE
4. Plaintiff has unclean hands. They base their claims of infringement on information and belief, on a “secret informant” whom they have never met or vetted for credibility, and who is the perpetrator of any unlawful conduct (being a disgruntled ex-employee).

                                                 SIXTH AFFIRMATIVE DEFENSE

1. Plaintiffs' claims for relief are barred by the “Fair Use Doctrine” pursuant to Section 107 of the Copyright Act, 17 U.S.C. §107.                                     SEVENTH AFFIRMATIVE DEFENSE
2. The action is barred by the doctrine of Laches.

                                               EIGHTH AFFIRMATIVE DEFENSE

1. Plaintiffs action is barred by the doctrine of equitable estoppel.                                        NINTH AFFIRMATIVE DEFENSE
2. Defendant's conduct was innocent, non-infringing, and not a willful infringement of copyright.                                        TENTH AFFIRMATIVE DEFENSE
3. Any alleged infringement is barred by the statutes of limitations as set forth in section 507 of the Copyright Act, 17 U.S.C. §507, and as set forth in California Civil Code §339(1).

                                             ELEVENTH AFFIRMATIVE DEFENSE

1. Plaintiff has failed to register the copyrights in one or more of the products set forth in their Complaint and thus are not permitted to file this suit or maintain this action.                                     TWELFTH AFFIRMATIVE DEFENSE
2. Plaintiffs have engaged in one or more acts that have misused their copyrights including but not limited to having wrongfully attempted to extend the scope of the limited monopoly granted by the Copyright Act. Defendants reserve the right to assert one or more antitrust related claims.

                                        THIRTEENTH AFFIRMATIVE DEFENSE

1. Plaintiffs' claims are barred to the extent they claim copyright protection in works that are immoral, illegal, obscene or libelous.                                 FOURTEENTH AFFIRMATIVE DEFENSE
2. Plaintiffs' claims are barred due to their deceptive and misleading advertising in connection with the distribution of all alleged copyrighted works.                                   FIFTEENTH AFFIRMATIVE DEFENSE
3. Plaintiffs have waived their rights to claim copyright infringement.                                 SIXTEENTH AFFIRMATIVE DEFENSE
4. Plaintiffs have abandoned or forfeited their copyrights.                               SEVENTEENTH AFFIRMATIVE DEFENSE
5. Plaintiff's have acquiesced in any alleged copyright infringement.                                 EIGHTEENTH AFFIRMATIVE DEFENSE
6. This action may be barred by the “first sale doctrine” because if lawfully obtained and possessed one or more of Plaintiff's copyrighted works. 17 U.S.C. §109(a).                                 NINETEENTH AFFIRMATIVE DEFENSE
7. Plaintiff's claims are barred since critical part or portions of their alleged protected copyrights are invalid due to consisting of un-protectable idea(s) or processes.

                                          TWENTIETH AFFIRMATIVE DEFENSE

1. Plaintiff's claims are barred since critical part or portions of their alleged protected copyrights are invalid due to consisting of fact(s).

                                       TWENTY-FIRST AFFIRMATIVE DEFENSE

1. This Court does not have personal jurisdiction over Defendants to enter a judgment against Defendant.

                                   TWENTY-SECOND AFFIRMATIVE DEFENSE

1. The Court lacks venue in this case.

                                      TWENTY-THIRD AFFIRMATIVE DEFENSE

1. Plaintiff is barred by 17 U.S.C. section 412 from claiming statutory damages or attorney's fees under the Copyright Act in that any alleged acts of infringement occurred before first registration of the Plaintiff's alleged work.

                                  TWENTY-FOURTH AFFIRMATIVE DEFENSE

1. Defendants have failed to join indispensable parties.

                                     TWENTY-FIFTH AFFIRMATIVE DEFENSE

1. Defendants are not the owner of one or more Copyrights at issue.

                                     TWENTY-SIXTH AFFIRMATIVE DEFENSE

1. One ore more of Defendants copyrights have elements taken from the public domain upon which a copyright infringement action cannot be maintained.

                                 TWENTY-SEVENTH AFFIRMATIVE DEFENSE

1. Defendants claims, including their assertion of copyright protection are barred by the doctrine of Merger.

                                   TWENTY-EIGHTH AFFIRMATIVE DEFENSE

1. This action is barred by the “scenes-a-faire” doctrine.

                                     TWENTY-NINTH AFFIRMATIVE DEFENSE

1. This action is barred by section 117 limitations on exclusive rights.

                                        THIRTIETH AFFIRMATIVE DEFENSE

1. Defendants actions are protected as backup copies.

                                       THIRTY-FIRST AFFIRMATIVE DEFENSE 31.       There is no infringement as one or more copies of software were made solely for maintenance and repair.

WHEREFORE, Defendant prays this Honorable Court for the following relief:

1. For dismissal of the Plaintiffs' action with prejudice;
2. For an order that Plaintiffs' shall take no relief from their complaint herein;
3. For an award of Defendant's costs and attorneys' fees herein incurred; and
4. For such further and other relief and the Court deems fair and just.

RESPECTFULLY SUBMITTED

DATED: January ____, 2016

Copyright Infringement Law Firm

By:      /s/_                  __________

XXXXXXX, Esq. (SBN XXX)

Attorney for Defendant(s)

One Sansome Street, Ste. 3500

San Francisco, CA 94104 Phone: (415) XXX-XXXX

Fax: (888) XXX-XXXX

PROOF OF SERVICE

The undersigned declares as follows:

I am over the age of eighteen years and not a party to the within action. My business address is XXXXXX, San Francisco, California 94104.

On January ____, 2015, I served the foregoing

Answer to Complaint Denying Allegations of Copyright Infringement and Affirmative Defenses

by placing a true copy thereof enclosed in a sealed envelope addressed as follows:

 “SEE ATTACHED SERVICE LIST BELOW”

___    I placed such envelope with postage thereon fully prepaid in the United States at San Francisco, CA (Marin County);

___  I am “readily familiar” with the State's practice of collection and processing correspondence for mailing.  Under that practice, it would be deposited with the U.S. Postal service on that same day with postage thereon fully prepaid at Silicon Valley, CA in the ordinary course of business.  I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter is more than one date of deposit for mailing in affidavit.

___     I sent such document(s) by OVERNIGHT COURIER Express. ___   I sent such document(s) by EMAIL and FAX (see service list below).  To the best of my knowledge these messages were delivered and not returned as unsent or undeliverable.

XX   I filed the above described document(s) electronically through the Court's ECF filing system to all registered users.

XX   I declare under penalty of perjury under the laws of the State of California and the laws of the United States that the above is true and correct.

XX   I declare that I am employed, or volunteer in the office of the member of the bar of the court at whose direction the service was made.

Executed on April 29, 2016, at San Jose, California.

By:      /s/                                 _________

                             DMCA, Assistant