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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO WEST COAST PRODUCTIONS, INC, Plaintiff, ) ) ) v. ) Case No. 1:12-CV-02642 ) – RBJ-MEH ) David Phillips, ) Defendant ) Plaintiff in Counterclaim ) ____________________________________________________________ DEFENDANT DAVID PHILLIPS’ ANSWER AND COUNTERCLAIM ____________________________________________________________
Comes now the Defendant, David Phillips, and by way of answer to the First Amended Complaint would respectfully show as follows: ANSWER 1. Defendant Phillips admits that the court has subject matter jurisdiction, but denies that he participated in the conduct at issue as alleged in paragraph 1. 2. Defendant Phillips admits that he resides in Colorado, but otherwise denies the allegations of paragraph 2. 3. Defendant denies the allegations of paragraphs 3, 4, 5, 6 and 7.
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4. Defendant Phillips has no knowledge or information concerning Defendant Webb, and therefore denies the allegations of paragraphs 8 and 9. 5. Defendant Phillips denies the allegations of paragraphs 10, 11, 12, 13, 14, 15, 16 and 17 as those allegations pertain to him, and is without knowledge of activities of other Defendants. 6. Defendant Phillips is without knowledge regarding Plaintiff’s domicile and therefore denies the allegations of paragraph 18. 7. Defendant Phillips is without knowledge the residence of Defendant Webb as alleged in paragraph 19. 8. Defendant Phillips admits the allegations of paragraph 20 concerning his place of residence, but denies he is properly named as a “John Doe” herein. 9. Defendant is without knowledge on information regarding the residence of co-Defendants as alleged in paragraphs 21, 22, 23, 24 and 25. 10.Defendant Phillips denies the allegations of paragraphs 26, 27, 28, and 29 to the extent those allegations pertain to him. 11.Defendant Phillips is without knowledge regarding the allegations of paragraphs 30, 31, 32, 33, 34 and 35.
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12.Defendant Phillips admits receiving a letter from Paul A. Lesko, Esq., of Simmons, Browder, et al, but otherwise denies the allegations of paragraph 36. Defendant is without knowledge of any communication with co-Defendants. 13.Defendant Phillips is without knowledge regarding the allegations of Paragraphs 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, and 51. 14.Defendant Phillips denies the allegations of paragraph 52, 53, 54, 55, 56, 57 and 58 to the extent they pertain to him. 15.Defendant Phillips incorporates the above in response to paragraph 59. 16.Defendant Phillips denies any copyright infringement by him, but is otherwise without knowledge regarding allegations of paragraphs 60, 61, 62, 63, and 64. 17.Defendant Phillips denies the allegations of paragraph 65, and specifically denies that Plaintiff entitled to injunctive relief. 18.Defendant Phillips incorporates the above in response to paragraph 66.
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19.Defendant Phillips denies any infringement by him, but is otherwise without knowledge regarding the allegations of paragraphs 67, 68, 69, 70, 71, 72, and 73. 20.Defendant Phillips denies that Plaintiff is entitled to any of the relief, at law or in equity, requested in the Prayer for relief following paragraph 73.
GENERAL DENIAL 21.Defendant Phillips denies each and every, all and singular, the allegations against him herein and demands strict proof thereof.
AFFIRMATIVE DEFENSES 22.Plaintiff comes to this Court with unclean hands. 23.Plaintiff has failed to mitigate damages, if any. 24.The Amended Complaint fails to state a claim upon which relief can be granted. 25.Plaintiffs claims may be barred for lack of subject matter jurisdiction due to lack of valid copyright registration or failure to timely do so. 26.Plaintiff “work” is not subject to copyright protection because it lacks originality.
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27.Plaintiff’s claims are barred by the doctrine of fair use. 28.Plaintiff has sustained no damages. 29.Plaintiff cannot prove that Defendant engaged in the alleged conduct. 30.Plaintiff’s claims are bared by waiver. 31.Plaintiff’s claims are barred by estoppel. 32.Plaintiff’s claims are barred by laches. 33.Plaintiff’s claims are barred because under the circumstances the statutory damages are grossly excessive. 34.Plaintiff’s claim for statutory damages is barred because Plaintiff failed to make copyright registrations within three months after publication of the allegedly infringed upon works. 35.The Court should strike the name of the work, stated in paragraph of the Amended Complaint because it is scandalous.
COUNTERCLAIMS Comes now Defendant David Phillips, now acting as Counter Plaintiff, and by way of counterclaim against Plaintiff / Counter Defendant would respectfully show as follows: JURISDICTION AND VENUE 1. This Court has Jurisdiction over the counterclaims pursuant to 28 USC §§ 1331 and 1332(a). Venue is appropriate in this district.
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BACKGROUND 2. Defendant has never downloaded a pornographic film or any other type of film through BitTorrent. Defendant’s computer is and was inoperable. 3. Defendant has no knowledge of any other person or entity using his computer, router or modem to download a pornographic film. 4. Defendant never authorized another person or entity to use his computer, router or modem to download a pornographic film. 5. Defendant never benefited from, nor authorized, either explicitly nor implicitly, any person or entity to use his computer, router or modem to download a pornographic film. 6. Plaintiff is a producer and distributor of pornography. 7. This case is part of a series of actions brought by this Plaintiff, and other pornographers in Colorado and elsewhere. 8. The purpose of these suits is not to protect copyrighted materials, but to embarrass, shame, humiliate and extort individuals, such as Defendant, into paying money to avoid being publicly associated with the downloading of pornography and to avoid being publically accused of illegal downloading pornography without paying for it.
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9. In terms of public attitudes, to be accused of illegally downloading pornography is to be stigmatized and branded in ways that may never be overcome. This stigma is what Plaintiff and others are counting on, because this is part of a now wide spread business model, scheme and conspiracy. 10. As one Judge has recently stated: Plaintiffs have outmaneuvered the legal system. They’ve
discovered the nexus of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs. And they exploit this anomaly by accusing individuals of downloading a single pornographic video. Then they offer to settle – for a sum
calculated to be just below the cost of a bare bones defense. For these individuals, resistance is futile; most reluctantly pay rather than to have their names associated with illegally downloading porn. So, now, copyright laws originally designed to compensate starving artists, starving attorneys in this electronic-media era plunder the citizenry. Ingenuity 13, LLC v. Doe, Case No. 2:12-cv-8333-ODW(JCx), ORDER IMPOSING SANCTIONS, Wright, J., filed May 6, 2013, Docket # 130.
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That is just what happened here. One of the attorneys who signed the Amended Complaint also signed adnd delivered a letter to Defendant Phillips that included the disgusting name of this “work” and offered to settle for $4,000. Another piece of similar correspondence was
placed on Defendant’s front porch for neighbors and family to see. A neighbor brought it to Defendant’s attention. This outrageous
conduct has caused foreseeable harm and humiliation to Defendant. 12. Plaintiff and other pornographers have put the legal process to improper use and are using this Court for improper purposes. 13. After identifying Defendant by an internet protocol (IP) the internet service provider was subpoenaed to produce Defendant’s identity. This method of identification is patently unreliable. 14. The allegations in the Amended Complaint were made with full knowledge that almost anyone with easily acquired equipment can take over and put any IP address to their own use, without the knowledge and consent of the rightful addressee. This constitutes a willful, wanton and reckless disregard for the rights and peace of Defendant.
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FIRST COUNTERCLAIM: ABUSE OF PROCESS 15. Defendant incorporates by reference herein the above factual allegations contained herein. 16. 17. Plaintiff intentionally brought this case against Defendant. The principal reason for doing so was other than to protect copyrighted material, but instead to extort and humiliate plaintiff. 18. This has caused Defendant to incur damages, harms and losses. SECOND CLAIM FOR RELIEF: MALICIOUS PROSECUTION 19. Defendant incorporates by reference herein the above factual allegations contained herein. 20. 21. 22. 23. This case was brought by Defendant for improper purposes. It was brought as a result of statements by plaintiff. The case was brought out of malice for plaintiff. Defendant has been compelled to defend himself, and has incurred fees and expenses in doing so. 24. Defendant has sustained damages, harms and losses because of this litigation. THIRD COUNTERCLAIM: INVASION OF PRIVACY 25. Defendant incorporates by reference herein the above factual allegations contained herein.
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Plaintiff intentionally invaded Defendant’s privacy by sending and posting the letters, and by subjecting him to public embarrassment and humiliation.
27. 28. 29.
The invasion would be very offensive to a reasonable person. Defendant has sustained damages, harms and losses. The invasion was a cause of the damages, harms and losses. FOURTH COUNTERCLAIM: OUTRAGEOUS CONDUCT
Defendant incorporates by reference herein the above factual allegations contained herein.
Plaintiff engaged in outrageous conduct by trying to extort money from Defendant by threat of publicly implicating him as an illegal downloader of pornography.
The disgusting title of the “work” (see Amended Complaint, paragraph 3) makes this conduct particularly extreme and outrageous.
Plaintiff intended to cause Defendant severe emotional distress, and did so.
Alternatively, Plaintiff acted recklessly because at the time the defendant knew, intended or should have known that there was substantial probability that the conduct would cause severe emotional distress.
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Plaintiff’s conduct was so extreme and outrageous that reasonable members of the community would regard it as atrocious and utterly intolerable in a civilized society.
Plaintiffs’ conduct in accusing defendant of downloading such a disgustingly titled piece of pornography for purposes of extorting money from Defendant goes beyond all bounds of decency.
Defendant has suffered severe emotional distress, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment and worry – all of which was the planned purpose of Plaintiff’s conduct.
This has caused defendant to sustain foreseeable and intended damages, harms and losses.
Plaintiff did this without the legitimate exercise of any legal right.
FIFTH CLAIM FOR RELIEF: GROUNDLESS AND FRIVILOUS LAWSUIT 40. Defendant incorporates by reference herein the above factual allegations of paragraphs 1 -14. 41. This lawsuit is groundless, frivolous and substantially vexatious within the meaning of CRS 13-17-101 and FRCP 11, in that it was brought not to enforce copyright law, but to coerce and extort Defendant. 42. Plaintiff has been forced to incur attorney fees and costs, and will continue to do so, in defending himself herein.
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DAMAGES 43. Defendant incorporates by reference herein the above factual allegations of paragraphs 1 -14. 44. Plaintiff’s conduct as described herein, has caused Defendant to sustain foreseeable, and in fact, intended damages harms and losses as set out below: a. b. c. d. e. f. g. 45. Extreme emotional distress; Embarrassment; Humiliation; Annoyance; Inconvenience; Mental anguish; and, Decreased quality of life.
Defendant has incurred attorney fees in defending himself, and is entitled to recover same.
Defendant is entitled to recover his costs expended herein. Defendant is entitled to interest on all amounts awarded at thehighest lawful rate.
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JURY DEMAND DEFENDANT RESPECTFULLY DEMANDS TRIAL BY JURY, THE APPROPRIATE FEE BEING TENDERED HEREWITH. WHEREFORE, Defendant requests that Plaintiff take nothing and that Defendant recover his damages as described herein, interest thereom attorney fees and costs. Defendant also requests such other and further relief, at law and in equity to which he may show himself to be justly entitled. Respectfully submitted this 10th day of May, 2013.
s/ Haily Stansberry (A duly-signed original is on file at the office of The Gasper Law Group, PLLC) _____________________________ Haily Stansberry, Esq. Stephen A. Brunette, Esq. THE GASPER LAW GROUP, PLLC 128 S. Tejon Street, Suite 100 Colorado Springs, Colorado 80903 Phone: (719) 227-7779 Fax: (719) 329-0329 Email: email@example.com firstname.lastname@example.org; Attorneys for Defendant & Plaintiff in Counterclaim
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CERTIFICATE OF SERVICE I hereby certify that on this 10th day of May, 2013, I forwarded a true and correct copy of the foregoing via e-mail, to: Sanjin Mutic, Esq. Mile High Law Office 621 Seventeenth St., Suite 1101 Denver CO, 80293 (303) 204-6141 Sanjin@milehightlawoffice.com
The Gasper Law Group, PLLC (A duly-signed original is on file at the office of The Gasper Law Group) /s/Stephen A. Brunette _____________________________ Stephen A. Brunette
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