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Defendants' Answer To Complaint
Defendants' Answer To Complaint
9
Case 2:07-cv-13164-ADT-DAS Document 9 Filed 09/14/2007 Page 1 of 10
Defendants.
__________________________________/
Dockets.Justia.com
Case 2:07-cv-13164-ADT-DAS Document 9 Filed 09/14/2007 Page 2 of 10
Defendants Apple Inc. (“Apple”), erroneously sued as Apple Computer, Inc., and
answer the Complaint filed by Plaintiffs Eight Mile Style, LLC and Em2M, LLC (jointly
“Plaintiffs”) as follows:
GENERAL ALLEGATIONS
as to the truth of the allegations in Paragraph 1 and on that basis deny the allegations of
Paragraph 1.
as to the truth of the allegations in Paragraph 2 and on that basis deny the allegations of
Paragraph 2.
Aftermath avers that it is a joint venture that, for purposes of the diversity jurisdiction
responsive pleading is required. To the extent that a response is required, Defendants deny
responsive pleading is required. To the extent that a response is required, Defendants deny
jurisdiction over the Defendants in this case. Except as specifically averred herein,
responsive pleading is required. To the extent that a response is required, Defendants deny
Registration with the United States Copyright Office attached at Exhibit A to the
Complaint are the best evidence of their contents. Except as specifically averred herein,
9. Answering Paragraph 9, Defendants aver that Apple sells through its iTunes
Store downloads of sound recordings that Apple purchases from UMG Recordings, Inc.
(“UMG”). Defendants further aver that customers who purchase downloads of UMG
sound recordings from the iTunes Store pay Apple to purchase those downloads.
Defendants further aver that purchasers of UMG sound recordings from the iTunes Store
download those recordings in the form of digital audio files, which are subject to certain
Paragraph 9.
10. Answering Paragraph 10, Defendants aver that customers in this District,
and elsewhere, have purchased downloads of sound recordings from the iTunes Store,
11. Answering Paragraph 11, Defendant Apple avers that it has not provided
compensation directly to, or sought permission directly from, Plaintiffs regarding the sale
of downloads of sound recordings through the iTunes Store. Except as specifically averred
herein, Defendant Apple denies the allegations of Paragraph 11. Defendant Aftermath is
allegations in Paragraph 11 and on that basis denies the allegations of Paragraph 11.
Case 2:07-cv-13164-ADT-DAS Document 9 Filed 09/14/2007 Page 4 of 10
12. Answering Paragraph 12, Defendants aver that Apple is authorized to sell
through its iTunes Store downloads of sound recordings that Apple purchases from UMG.
truth of the remaining allegations in Paragraph 12 and on that basis denies all allegations in
14. Answering Paragraph 14, Defendants aver that Plaintiffs sent Apple a letter
dated July 27, 2007, and that this letter is the best evidence of its contents. Except as
responsive pleading is required. To the extent that a response is required, Defendants deny
responsive pleading is required. To the extent that a response is required, Defendants deny
the allegations of Paragraph 18.
responsive pleading is required. To the extent that a response is required, Defendants deny
responsive pleading is required. To the extent that a response is required, Defendants deny
responsive pleading is required. To the extent that a response is required, Defendants deny
responsive pleading is required. To the extent that a response is required, Defendants deny
responsive pleading is required. To the extent that a response is required, Defendants deny
the allegations of Paragraph 25.
responsive pleading is required. To the extent that a response is required, Defendants deny
responsive pleading is required. To the extent that a response is required, Defendants deny
responsive pleading is required. To the extent that a response is required, Defendants deny
responsive pleading is required. To the extent that a response is required, Defendants deny
AFFIRMATIVE DEFENSES
First Affirmative Defense
(Failure to State a Claim)
33. Plaintiffs’ Complaint fails to state a claim upon which relief may be granted.
Second Affirmative Defense
(Statute of Limitations)
34. Plaintiffs’ claims are barred in whole or in part by applicable statutes of
limitations.
Case 2:07-cv-13164-ADT-DAS Document 9 Filed 09/14/2007 Page 7 of 10
(No Standing)
35. Plaintiffs lack standing to assert the claims contained in the Complaint, to
the extent they have failed to demonstrate they are the owners of the copyrights or
exclusive rights under state law alleged to have been infringed or to have been interfered
with.
36. Plaintiffs’ claims are barred to the extent the allegedly unlawful or
infringing use of the works at issue was licensed or otherwise authorized by persons or
37. Federal law preempts some or all of Plaintiffs’ claims asserted under state
law.
(Estoppel)
38. Plaintiffs’ claims are barred by the doctrine of estoppel.
(Waiver)
(Unclean Hands)
unclean hands.
(Failure to Mitigate)
42. Without any admission by Defendants that Plaintiffs suffered injury in any
way, to the extent that Plaintiffs did suffer such injury, their claims are barred in whole or
in part because they failed to use reasonable means to prevent the alleged damage and
43. Plaintiffs’ claims fail in whole or in part to the extent they have suffered no
damages.
(Set-off)
44. Plaintiffs’ alleged claims to damages are barred, in whole or in part, by the
right of one or more Defendants to a set-off against any such damages.
45. Plaintiffs’ prayer for statutory damages and attorney’s fees under the
Copyright Act is barred to the extent the copyrights in issue do not meet the registration
(Failure of Performance)
46. Plaintiffs are barred from recovery of damages or other relief to the extent
that they or others failed to perform conditions precedent, concurrent or subsequent under
pertinent agreements.
47. Defendants reserve the right to assert additional defenses upon discovery of
1. That Plaintiffs take nothing by their Complaint and for a judgment in favor
3. That this Court order such other and further relief in Defendants’ favor as
s/Daniel D. Quick
Daniel D. Quick (P48109)
Dickinson Wright PLLC
38525 Woodward Avenue
Suite 2000
Bloomfield Hills, MI 48304
(248) 433-7200
[email protected]
Attorneys for Defendants
Case 2:07-cv-13164-ADT-DAS Document 9 Filed 09/14/2007 Page 10 of 10
Kelly M. Klaus
Munger, Tolles & Olson LLP
355 South Grand Avenue
Suite 3500
Los Angeles, CA 90071-1560
(213) 683-9238
[email protected]
Attorneys for Defendants
CERTIFICATE OF SERVICE
s/Daniel D. Quick
Daniel D. Quick (P48109)
Dickinson Wright PLLC
38525 Woodward Avenue
Suite 2000
Bloomfield Hills, MI 48304
(248) 433-7200
[email protected]
Attorneys for Defendants