handdator

Visa fullständig version : Pirateboy wins in court!!!


2007-02-01, 01:16
Good news for once.....

http://www.theinquirer.net/default.aspx?article=37337



Enjoy/SteadyHead

TheBaldingOne
2007-02-01, 21:17
Your thread title is misleading, Bobby Santangelo hasn"t won anything... What he has done is deny and counter sue the RIAA. The full submission can be found here --> http://www.p2pnet.net/stuff/robert6s.pdf and is reproduced below (courtesy of p2pNet News)...



Civil Action No. 06-cv-11520 (SCR)



Defendant, ROBERT SANTANGELO, JR., by his attorneys, Jordan D. Glass, P.C., for his answer to the Plaintiffs? complaint, alleges:



1. Denies paragraph 1, sentence 3 to the end of the paragraph. Denies knowledge or information sufficient to form a belief as to paragraph 1, sentence 1.



2. Denies paragraphs 2, 18, 19, 20 and 21.



3. Denies knowledge or information sufficient to form a belief as to Plaintiffs? statements in paragraphs 3, 4 and 5 as to the actions or statements of others. Denies Plaintiffs? allegations about Defendant contained in paragraphs 3, 4 and 5.



4. Denies knowledge or information sufficient to form a belief as to paragraphs 6, 7 and 8. Denies Plaintiffs? allegations about the Defendant contained in paragraph 8.



5. Denies knowledge or information sufficient to form a belief as to paragraphs 9, 10, 11, 12, 13, 16 and 17.



6. Defendant reaffirms each and every response above in answer to paragraph 15 as if set forth fully at length herein.



FIRST AFFIRMATIVE DEFENSE



7. The Complaint fails to state a claim upon which relief can be granted.



SECOND AFFIRMATIVE DEFENSE



8. Plaintiffs? claims against Defendant are barred by acquiescence.



THIRD AFFIRMATIVE DEFENSE



9. Plaintiffs? claims against Defendant are barred by estoppel.



FOURTH AFFIRMATIVE DEFENSE



10. Plaintiffs? claims against Defendant are barred by estoppel by acquiescence.



FIFTH AFFIRMATIVE DEFENSE



11. The alleged conduct, had it occurred, constituted fair use, as it would have been solely been for private entertainment and not for commercial use.



SIXTH AFFIRMATIVE DEFENSE



12. Plaintiffs failed to satisfy the pleading requirements applicable to copyright infringement. There is no liability for infringing upon the right of distribution unless copies of copyrighted works were actually disseminated to members of the public.



13. Defendant denies having disseminated any copyrighted works to members of the public.



SEVENTH AFFIRMATIVE DEFENSE



14. Plaintiffs have engaged in a wide-ranging conspiracy to defraud the Courts of the United States.



a. Plaintiffs, ostensibly competitors in the recording industry, are a cartel acting collusively in violation of the antitrust laws and public policy, by litigating and settling all cases similar to this one together, and by entering into an unlawful agreement among themselves to prosecute and to dispose of all cases in an identical manner and through common lawyers.



b. Among the acts in furtherance of this conspiracy are: (1) bringing, without investigation sufficient to establish that the allegations and factual contention therein have evidentiary support, lawsuits against persons who are not specifically known to have infringed copyrights; (2) making false and unsupported allegations that the defendants in these actions have infringed copyrights, by making the unwarranted and technologically erroneous assumption that an Internet Protocol address is a unique identifier of a computer or an individual; (3) using a corporation known as Settlement Support Center, LLC, as their agent to make extortionate threats to take criminal action and to defame defendants? names and credit in order to force defendants to pay sums which have no relation to Plaintiffs? actual damages, if any, and by delivering fraudulent releases to settling defendants (few of whom are represented by counsel), in that such releases do not constitute true releases of all claims, thereby misleading settling defendants into erroneously believing that they cannot be sued again; (4) commencing ex parte ?John Doe? lawsuits which they have no intention of pursuing, but by means of which they are able to communicate with District Judges, Magistrate Judges, and other judicial officials on a daily basis, without providing defendants with notice or opportunity to be heard, in violation of attorneys? ethical obligations as officers of the Courts; (5) invading the privacy of these ?John Doe? defendants by then serving subpoenas on Internet Service Providers without notice to the potential defendants; (6) bringing the ?John Doe? lawsuits in jurisdictions far removed from the domiciles of the ?John Does,? so that they have no meaningful opportunity to be heard or to retain counsel of their own choosing; (7) withdrawing such actions upon being challenged and thereby preventing defendants from obtaining relief for having to defend them; and, (8) engaging in other unconscionable conduct.



c. On information and belief, these and other plaintiffs and the Recording Industry Association of America (?RIAA?) have commenced some 19,000 actions in the District Courts of the United States in the past five years, the overwhelming majority of which have resulted either in default judgments or extortionate settlements far in excess of any actual damages incurred by these Plaintiffs or other plaintiffs within and without the RIAA.



15. These actions, and the conduct underlying them, constitute misuse of Plaintiffs? copyrights, thereby barring Plaintiffs claims.



EIGHTH AFFIRMATIVE DEFENSE



16. Plaintiffs? claims are barred under the doctrine of unclean hands.



NINTH AFFIRMATIVE DEFENSE



17. Upon information and belief, the alleged conduct, had it occurred, was authorized; indeed, on information and belief, Plaintiffs promoted, fostered and facilitated such conduct over the Internet and by other means.



TENTH AFFIRMATIVE DEFENSE



18. The Complaint fails to join one or more individuals and entities as parties to the action whose absence precludes complete relief to those already parties, or impairs Defendant?s ability to protect his interests within the meaning of Rules 12(cool.gif(7) and 19 of the Federal Rules of Civil Procedure; therefore, this matter should be dismissed with prejudice. Plaintiffs? claims against Defendant are also barred because Plaintiffs have failed to join the indispensable party or parties of the ?online media distribution system? identified in Plaintiffs? Complaint paragraph 18, and the person or persons or entities, also identified in paragraph 18, who or which obtained copies of the works allegedly ?distributed? or ?shared? by Defendant. Plaintiffs? claims against Defendant are also barred because Plaintiffs have failed to join the indispensable party identified by Plaintiffs as the ?neighbor and best friend? in Plaintiffs? Complaint paragraph 3, with whom Plaintiffs claim to have made a settlement and who is known to the Plaintiffs to have been the person who loaded the allegedly offending programs onto the Santangelo Computer.



ELEVENTH AFFIRMATIVE DEFENSE



19. Defendant is not a necessary and proper party. Plaintiffs have sued the wrong person.



TWELFTH AFFIRMATIVE DEFENSE



20. The alleged claims made by each Plaintiff against Defendant are neither well grounded in fact nor warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law within the meaning of Rule 11 of the Federal Rules of Civil Procedure.



THIRTEENTH AFFIRMATIVE DEFENSE



21. Plaintiffs? claims are barred under the doctrine of laches.



FOURTEENTH AFFIRMATIVE DEFENSE



22. The claims alleged by each Plaintiff against Defendant are barred by the statute of limitations, 17 U.S.C. § 507 (cool.gif, which provides that no civil action may be maintained under the federal Copyright Act unless the same is commenced within three years after the claim accrued.



FIFTEENTH AFFIRMATIVE DEFENSE



23. Plaintiffs have failed to mitigate their damages, if there actually be any, as required by law.



SIXTEENTH AFFIRMATIVE DEFENSE



24. To the extent that Plaintiffs? claims accuse Defendant of criminal acts, Defendant specifically denies that he has committed any criminal acts and asserts his Fifth Amendment rights under the United States Constitution. (Plaintiff has verbally identified perjury and piracy as possible crimes committed by Defendant.)



SEVENTEENTH AFFIRMATIVE DEFENSE



25. While maintaining that Defendant did not download any music, Defendant asserts that all music alleged to have been downloaded was already owned by the Defendant or immediate family members prior to the dates of any alleged downloading, and that there is no evidence to support that Defendant was involved in any downloading whatsoever.



EIGHTEENTH AFFIRMATIVE DEFENSE



26. On information and belief, Plaintiffs promoted downloading free music, and then Plaintiffs, once having already enticed and encouraged children and teenagers to download music for free, turned on their audience and sued them for the same behavior they had previously encouraged. Plaintiffs exhibited their ability to turn on their audience by displaying physically threatening and frightening behavior at depositions.



NINETEENTH AFFIRMATIVE DEFENSE



27. To the extent that Plaintiffs have suffered damages, if at all, they have set their own public rate of damages at $0.99 per song, of which they do not receive the entire amount and can not claim more than their actual damages. Plaintiffs? actual damages are claimed to be $0.70 per recording and Plaintiffs seek statutory damages under the Copyright Act which are between 1,071 and 42,857 times the actual damages suffered. Popular music sound recording downloads [owned by the Plaintiffs] and the consumer license to use them are lawfully obtainable to the public at $0.99 per song and, of that $0.99, roughly $0.70 per song is paid by the retailer to the record label. The statutory damages sought by Plaintiffs under 17 U.S.C. § 504©(1) are unconstitutionally excessive and disproportionate to any actual damages which may have been sustained, in violation of the Due Process Clause of the Constitution of the United States.



TWENTIETH AFFIRMATIVE DEFENSE



28. Plaintiffs can not meet their burden of proof that Defendant either downloaded or ?shared? files.



TWENTY-FIRST AFFIRMATIVE DEFENSE



29. On information and belief, Plaintiffs were in the unique and best position to stop the distribution of such files over the Internet, as they possessed the technology and money to do so, but failed and refused to do so; in fact, they lobbied Congress to set safe harbors with their collaborators and business partners, such as in the form of the Digital Millennium Act and other such laws, and are now using such laws as the platform from behind which to sue children, people who are seriously ill and whose illnesses may be exacerbated by the actions of the Plaintiffs, the elderly (and even deceased ), impoverished, and uneducated (or at least the technologically unsophisticated ? for these purposes they suffer the same), targeting parties unable to defend themselves against multiple law firms with defenses requiring sophisticated technical acumen and six-figure discovery activities. On further information and belief, Plaintiffs colluded with America Online (?AOL?), in particular, in regard to the use of parental controls, both accusing parents of not setting such controls ? for secondary liability purposes ? and then hiding behind the fact that when parents did set such controls, that such controls effectively blocked the Plaintiffs? agent?s (?Agent?) alleged warnings (?Warnings?) that downloading from KaZaA, iMesh, Napster, Grokster, LimeWire and others was improper or illegal (Plaintiffs? claimed message has not been seen, so its exact contents are unknown, but is alleged to exist by Plaintiffs). So insidious is this scheme, it is akin to asking, ?Will you stop beating your wife?? Plaintiffs used this Hobson?s choice in the secondary liability cases thus: if parents set the controls to block unknown ?Instant Messages? (?IM?) from reaching their children (to prevent, say, child pornographers from making contact), then the Agent?s Warnings, too, would be blocked. Plaintiffs claim this ?proved? a parent?s ?ability or right to control? the use of the computer, allegedly establishing secondary liability. Conversely, if a parent failed to make use of such controls, then the parent would be accused of implicitly condoning the downloading. But who was in the better ? indeed, best ? position to work with AOL to allow such Warnings to bypass the parental controls? The parents who didn?t even know the problem existed, or the Plaintiffs, who managed to obtain law enforcement authority for its Agents to directly access potential defendants? hard drives, bypassing any kind of parental controls (and perhaps going through firewalls and other security settings) to take ?snap shots? of alleged ?shared directories?? Clearly, if Plaintiffs could manage direct remote and secret access to potential defendants? hard drives, they could manage an arrangement with AOL and law enforcement to allow these Warnings to be passed through to the nation?s unsuspecting children ? that is, if they had wanted to stop the downloading and prevent these lawsuits.



TWENTY-SECOND AFFIRMATIVE DEFENSE



30. Plaintiffs notified only large businesses and the Federal Government that their employees and their respective families might be violating the law, but failed to make any meaningful or reasonable efforts to notify the public at large, even though they were in the best position to do so. As of this date, there are no publications available to the public at the United States Government?s Federal Citizen Information Center warning against, or offering ways for parents to protect their children against, the allegedly illegal downloading.



TWENTY-THIRD AFFIRMATIVE DEFENSE



31. To personally defend against the type of violation Plaintiffs allege, one needs specialized technical training not available to the average person; indeed, even the CEO of Warner Music could not ? or did not takes steps to, or did not know to takes steps to, or did not know how to take steps to ? prevent his own children from illegally downloading music (infra, paragraph 30). It is not a question of ignorance of the law ? of which law the Plaintiffs, on information and belief, affirmatively encouraged and facilitated violation (if it is, in fact, a violation of any law); rather, it is a question of inability to know that a law is even being violated, an inability to defend against knowing of the violation without ?methods assistance,? which assistance was available to Plaintiffs, but which they failed and refused to provide to consumers. Further, the type of technological defense necessary to combat such violations was not practicably available to home computer users when the alleged violations took place (and such defensive systems are still not largely available), but such technology was available to, and in use by, the Plaintiffs, large businesses, the United States Government and various state governments: one type of technology is called a ?firewall? and most home computer users did not have them (or know how to use them) when the violations were alleged to have occurred, back in 2002 through 2004, importantly, when this Defendant was only 11-14 years of age. The home computing world was entirely different then, and it is impossible to consider anyone?s actions, knowledge, inactions, or access to technology from that time based upon today?s knowledge and available technology. Plaintiffs chose who they would warn (such as ?big business? and the Federal Government ? there was even a special notice for the White House), and once they took an action to affirmatively warn one group, they had an obligation to affirmatively warn all potential defendants similarly situated, and that, by the most basic definition, would include any computer user, whether in business, government or home. To not demand this means it would be acceptable for Plaintiffs to warn Utah, but not Missouri; African Americans, but not Latinos; males, but not females; people with incomes over $100,000.00, but not under (which Plaintiffs did do in the form of warning big business and big government but not individuals); businesses, but not individuals. The burden to do so on the Plaintiffs was low (through the Internet, ISP?s, various governmental agencies, computer manufacturers, computer superstores and distributors, on their own CD?s and self-promoting shows), and the Plaintiffs had the resources, technology and law available to them to accomplish this; the damage to the potential defendants was high (19,000 lawsuits and counting); but the Plaintiffs did nothing after taking their initial self-serving steps.



TWENTY-FOURTH AFFIRMATIVE DEFENSE



32. Plaintiffs have crafted at least two additional and alternative forms of damages, which forms have not been offered to this Defendant, even though similarly situated. One alternative, explicated by Warner Music?s CEO, Edgar Bronfman, is for a parent to talk to his or her children: ?I explained to them [his children] what I believe is right, that the principle is that stealing music is stealing music. Frankly, right is right and wrong is wrong, particularly when a parent is talking to a child. A bright line around moral responsibility is very important. I can assure you they no longer do that.? As to what else he did to them, he responded, ?I think I?ll keep that within the family.? Plaintiffs have failed and refused to offer this Defendant the same form of damages. The other alternative, offered to large companies, was to simply erase the offending files from the hard drive. Plaintiffs have failed and refused to offer this Defendant the same form of damages. Exhibit A.



TWENTY-FIFTH AFFIRMATIVE DEFENSE



33. Plaintiffs? first demand for damages is moot and frivolous and should be dismissed as Plaintiffs have acknowledged that the Computer relevant at all times to this action, along with its hard drive, was destroyed in a fire more than 30 months? ago, and at least five months? prior to any Santangelo defendant having notice of any potential litigation.



TWENTY-SIXTH AFFIRMATIVE DEFENSE



34. Plaintiffs? claims against Defendant are barred due to a settlement agreement Plaintiffs reached with Sharman Networks, creators and distributors of the KaZaA software. Upon information and belief, this settlement was in the amount of $115 million. Although Plaintiffs in their Complaint do not allege which media network the Defendant used (paragraph 18), Plaintiffs have previously identified KaZaA to have been the ?online media distribution system? used by the Defendant. Through Plaintiffs? settlement with Sharman Networks, Plaintiffs elected to accept a settlement which fully compensated Plaintiffs for the injuries allegedly caused by Defendant and others. This settlement fully compensated Plaintiffs for any alleged infringement by Defendant, and therefore bars Plaintiffs from recovering any damages a second time for the same alleged infringements.



TWENTY-SEVENTH AFFIRMATIVE DEFENSE



35. Plaintiffs? claims against Defendant are barred due to a settlement agreement Plaintiffs reached with the Defendant?s ?neighbor and best friend,? with whom the Plaintiffs, according to their Complaint (paragraph 3), have settled by having the ?neighbor and best friend? ?pay[] a settlement amount? and for other relief received. Through Plaintiffs? settlement with the ?neighbor and best friend,? Plaintiffs elected to accept a settlement which fully compensated them for the damages allegedly caused by Defendant and possibly others. This settlement fully compensated Plaintiffs for any alleged infringement by Defendant, and therefore bars Plaintiffs from recovering any damages a second (or even third) time for the same alleged infringements.



TWENTY-EIGHTH AFFIRMATIVE DEFENSE



36. It is Plaintiffs? contention that the offending programs were installed by Defendant?s ?neighbor and best friend,? and there is no allegation or evidence that such was done with the knowledge or permission of the owner of the Computer, Patricia Santangelo, mother of the Defendant, and with whom the Defendant resides. The ?neighbor and best friend? exceeded his authority in his use of the Computer, whether as a licensee or an invitee, and installed and used the programs for his own benefit and gain and, as such, was a trespasser. The existence of the offending programs were invisible to Patricia Santangelo; they were a trap set by the trespasser for his own benefit and gain. He gave no notice, asked no permission, and left no meaningful visible trail or warnings of his actions. That ?neighbor and best friend? too, was duped by the provider, or earlier facilitated by the Plaintiffs, only supports the Defendant?s additional positions. Whether ?neighbor and best friend? set such programs to ?share? or ?distribute,? or failed to set such programs to ?not share? and ?not distribute,? was and is unknown to Defendant and unknowable to his mother, Patricia Santangelo. In any event, ?neighbor and best friend? caused any sharing or distribution to occur, not Defendant or Patricia Santangelo. Consequently, and for reasons separate and apart from those in the Twenty- Seventh Affirmative Defense, Plaintiffs? claims against Defendant are barred due to the settlement agreement Plaintiffs reached with the Defendant?s ?neighbor and best friend,? with whom the Plaintiffs, according to their Complaint, paragraph 3, have settled by having the ?neighbor and best friend? ?pay[] a settlement amount? and for other relief received. Through Plaintiffs? settlement with the ?neighbor and best friend,? Plaintiffs elected to accept a settlement which fully compensated them for the damages allegedly caused by Defendant and possibly others. This settlement fully compensated Plaintiffs for any alleged infringement by Defendant, and therefore bars Plaintiffs from recovering any damages a second (or even third) time for the same alleged infringements.



TWENTY-NINTH AFFIRMATIVE DEFENSE



37. Plaintiffs claim they reached a settlement agreement with the ?neighbor and best friend.? Plaintiffs failed to notify Defendant of such settlement to which settlement agreement Defendant (and perhaps others) was a necessary party as he had a direct interest in the structure, terms, scope, nature and outcome of the agreement, and such agreement necessarily impacted him. Since Plaintiffs failed to notify Defendant and reached such a settlement without his participation, knowledge or agreement, Plaintiffs should be barred from recovering any damages a second (or even third) time for the same alleged infringements, in particular those known to the Plaintiffs to have been caused by someone other than the Defendant (i.e.: the ?neighbor and best friend?).



THIRTIETH AFFIRMATIVE DEFENSE



38. To the extent that any downloading occurred, if at all, it would have been the result of an agreement with some provider (which agreements, if any, were not created by Defendant, but under which Defendant impliedly and unknowingly operated). Such agreement, constituting either a fraud in the inducement or a contract, would have been voidable as to Defendant because (at minimum) the Defendant was a minor at all times relevant to the action, and is still a minor as of this date. It is undisputed that the Computer on which the alleged downloaded music resided was destroyed five months before any Santangelo defendant had any notice of any lawsuit. The Defendant, not then being in possession of any such downloaded music at the time of the lawsuit, and there being no allegations by the Plaintiffs that he remained in possession of any of such music, or that he continued to or then first started to download music onto any replacement computer (in particular, between the time of the destruction of the old computer and the time of the bringing of the lawsuit), the contract was voided by the Defendant and there were no damages to the Plaintiffs. Plaintiffs? damages can not be based upon ?listening? to music over the Internet, as, on information and belief, anyone can listen to Plaintiffs? songs for free through AOL radio or any number of other ?Internet radios,? as well as for free on various AM or FM radio music stations; the damages must be based upon some benefit to the Defendant or damage to the Plaintiffs. There is no evidence that Defendant listened to anything either than on the Internet or on CD?s already owned. Further, to the extent that the music listened to was the result of music being played on the computer from CD?s already purchased and owned by the Defendant or his family, the ?listening? was part of Plaintiffs? license and any ?playing? is within the license provided by the Plaintiffs, which license, on information and belief, does not limit the mechanical or electronic device on which Plaintiffs? CD?s can be played ? only the distribution could be part of the Plaintiffs? claim. Since there is no evidence the Defendant distributed anything, even if he had listened to music on the computer ? from CD?s already owned, ownership being based upon purchases and gifts (of original CD?s) and of neither by any alleged downloading ? Defendant can not be attributed with causing any damages to any Plaintiff by having not ventured outside the license of the Plaintiffs. This Defendant having obtained no benefit, and the Plaintiffs not having been damaged, the action is therefore moot and should be dismissed with prejudice.



THIRTY-FIRST AFFIRMATIVE DEFENSE



39. On information and belief, Plaintiffs engaged in deceptive and misleading advertising in connection with the distribution of their copyrighted works. The nature of such deceptive and misleading advertising included, but was not limited to, enticing children and others to listen to music over the Internet, which, in turn, caused unsuspecting downloads and/or was associated with claims by others of allowable free downloading.



40. Plaintiffs? claims are barred because of their deceptive and misleading advertising in connection with the distribution of their copyrighted works. Plaintiffs must not be allowed to profit from their deceptive and misleading actions.



THIRTY-SECOND AFFIRMATIVE DEFENSE



41. Plaintiffs? claims are barred to the extent any persons, based on whose behavior Plaintiffs seek to hold Defendant liable, are innocent infringers.



FIRST COUNTERCLAIM



Breach of Duty to Warn; Unequal Treatment Under Law



42. Defendant-counterclaim plaintiff Robert Santangelo, Jr., is an individual residing within this district.



43. On information and belief, plaintiff-counterclaim defendant Elektra Entertainment Group, Inc., is a Delaware corporation with its principal place of business in the State of New York.



44. On information and belief, plaintiff-counterclaim defendant Virgin Records America, Inc., is a California corporation with its principal place of business in the State of New York.



45. On information and belief, plaintiff-counterclaim defendant UMG Recordings, Inc., a Delaware corporation with its principal place of business in the State of California.



46. On information and belief, plaintiff-counterclaim defendant BMG Music is a New York general partnership with its principal place of business in the State of New York.



47. On information and belief, plaintiff-counterclaim defendant Sony BMG Music Entertainment is a Delaware general partnership with its principal place of business in the State of New York.



48. This Court has jurisdiction of this action pursuant to 17 U.S.C. § 101 et seq. (copyright), 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1338(a) (copyright). The Court has jurisdiction over counterclaims under U.S.C. Federal Rules of Civil Procedure Rule 13.



49. Counterclaim defendants are, on information and belief, the copyright owners or licensees of certain sound recordings.



50. On or about November 1, 2006, counterclaim defendants commenced an action in the U.S. District Court for the Southern District of New York (06-cv-11520) against counterclaim plaintiff charging him with copyright infringement.



51. Counterclaim plaintiff is accused therein of downloading and file-sharing certain computer files consisting of sound recordings allegedly owned or licensed by counterclaim defendants.



52. The acts allegedly committed by counterclaim plaintiff as set forth in the complaint therein do not constitute copyright infringement.



53. Counterclaim defendants do not allege any specific acts of downloading or file-sharing or provide any details of time and place regarding such acts as against counterclaim plaintiff.



54. There is an actual controversy between the counterclaim plaintiff and counterclaim defendants.



55. Counterclaim plaintiff reasserts each and every allegation in paragraphs 1 through 41 of his Answer as if set forth fully at length herein, and incorporates same by reference.



56. Plaintiffs, whether individually or through their agent, the Record Industry Association of America (?RIAA?), had a duty to warn individuals ? this Defendant and those similarly situated ? of the type of copyright infringement or violation they allege, just as they warned large businesses and the government. (At all times hereafter in this section on the First Counterclaim, the word ?Plaintiffs? refers to the individual plaintiffs in this action and their agent, the RIAA.)



57. On information and belief, Plaintiffs actively and openly, as well as secretively and furtively, encouraged children and others to participate in seeking out, listening to, ?playing? and ultimately, often unintentionally and unknowingly, downloading Plaintiffs? copyrighted materials from the Internet.



58. Plaintiffs thereafter changed their position and determined they did not want this same group to play or download music from the Internet. Defendant and others similarly situated relied upon Plaintiffs? representations, upon which representations they were reasonable to rely, and upon which representations they did rely to their obvious detriment.



59. To the extent that Plaintiffs were not happy with such representations in the marketplace, they were in the best position to change such notions, as they had the contacts with law enforcement, businesses, governments, OEM?s, computer manufacturers, programmers, ISPs, and all level of manufacturers and service providers. Plaintiffs then engaged in a series of notifications to the government of the United States and to large corporations, as well as, on information and belief, to certain academic institutions. The RIAA?s undated warning to large businesses, goes so far as to include a sample memo for such businesses to send to their employees. Id. Exhibit A.



TO: (Distribution list)



FROM: (Senior Officer)



SUBJECT: Policy on Use of Copyrighted Material



DATE: (Insert)



The purpose of this memorandum is to remind you of (Organization?s) policy on the use of copyrighted material on (Organization?s) computer systems and networks.



Unauthorized copying, distribution and certain other use of copyrighted material is illegal and can expose you and (Organization) to severe civil and criminal liability under the copyright law. This applies to all types of copyrighted works, including music, movies, software and other literary and artistic works.



Employees must not make, store, transmit or make available unauthorized copies of copyrighted material using (Organization?s) computers, networks or storage media. Nor may employees use peer-to-peer file transfer services or take other actions likely to promote or lead to copyright infringement. If you have stored unauthorized copies of music, movies, software or other copyrighted works on (Organization?s) computer systems, you should delete those copies promptly.



(Organization?s) complete policy on the use of copyrighted material is attached. Please note that employees are subject to disciplinary action, including possible termination, for violation of this policy. (Compliance Officer) will be organizing regular audits of (Organization?s) computers and networks to ensure compliance and, if necessary, will remove unauthorized copies if you have not done so.



Please do not hesitate to contact (Compliance Officer) if you have any questions.



60. The seven page document is signed, ?Hilary B. Rosen, Chairman and CEO, RIAA,? and ?Jack Valenti, President and CEO, Motion Picture Association of America.?



61. Further, The Executive Office of the President (of the United States), through the Office of Management and Budget sent a memo to warn themselves and other federal employees, of the various dangers and illegalities of downloading music (as well as pornography and other things ...) and ?to show the American Public? responsible Internet practices.



62. The first page of the memo, Exhibit B, states:



The purpose of this memorandum is to detail specific actions agencies must take to ensure the appropriate use of certain technologies used for file sharing across networks. These actions are based on recommended guidance developed by the CIO Council in 1999. The effective use and management of file sharing technology requires a clear policy, training of employees on the policy, and monitoring and enforcement.



Background



A type of file sharing known as Peer-to-Peer (P2P) refers to any software or system allowing individual users of the Internet to connect to each other and trade files. These systems are usually highly decentralized and are designed to facilitate connections between persons who are looking for certain types of files. While there are many appropriate uses of this technology, a number of studies show, the vast majority of files traded on P2P networks are copyrighted music files and pornography. Data also suggests P2P is a common avenue for the spread of computer viruses within IT systems.



Federal computer systems or networks (as well as those operated by contractors on the government?s behalf) must not be used for the downloading of illegal and/or unauthorized copyrighted content. It is important to ensure computer resources of the Federal government are not compromised and to demonstrate to the American public the importance of adopting ethical and responsible practices on the Internet.



[The word ?Background? is bolded in original. All other emphasis added.]



63. The Defendant, and others similarly situated, received no such brochures or notices, only enticements for ?free music? from computer providers, such as Gateway (which was the Santangelo computer at that time). To a teenager, advertisements for free music are not replete with notices about when ?free? starts and ends and what to do next. Once ?hooked,? as the companies clearly intended, with free music sites available all over the Internet, one not distinguishing itself from another, any reasonable teen would similarly behave. Gateway?s advertisements promoted the power of its CD-burner. If not for music, then for what ? to a teenager?



64. Plaintiffs breached their duty to warn the public, and chose who it would warn. Once having taken the affirmative step to issue warnings to some, it then failed to warn others, in particular, the Defendant and others similarly situated.



65. The relief requested cannot be obtained in the action against counterclaim plaintiff.



66. Plaintiffs failure to adequately and meaningfully warn was the direct, legal and proximate cause of any damages which Defendant has incurred, and Defendant has been damaged therefrom, as to his reputation, legal fees and expenses, distraction from school and life activities, held up to public obloquy, used as an operative against his friends for the benefit of the Plaintiffs? cartel and had stolen from him the one thing even this honorable Court has not the power to return: his time. But he can be compensated with money.



67. In addition to pecuniary damages, pursuant to Copyright Act § 505, defendant is entitled to be awarded his attorneys fees in defending this frivolous suit.



SECOND COUNTERCLAIM



Misuse of Copyright



68. Counterclaim plaintiff re-alleges paragraphs 42 through 54 of his First Counterclaim.



69. Counterclaim plaintiff reasserts each and every allegation in paragraphs 1 through 41 of his Answer as if set forth fully at length herein, and incorporates same by reference.



70. The counterclaim defendants are competitors in the business of recorded music.



71. The counterclaim defendants are a cartel acting collusively in violation of the antitrust laws and public policy, by litigating and settling all cases similar to this one together, and by entering into an unlawful agreement among themselves to prosecute and to dispose of all cases in an identical manner and through common lawyers.



72. Counterclaim plaintiff re-alleges paragraph 14, et. seque, of his Seventh Affirmative Defense.



73. Such actions represent an attempt by counterclaim defendants to secure for themselves rights far exceeding those provided by copyright laws.



74. Such acts constitute misuse of copyrights, and lead to a forfeiture of the exclusive rights granted to counterclaim defendants by those laws.



75. Counterclaim plaintiff is entitled to a judgment that counterclaim defendants have forfeited the exclusive rights, if any, which they possess in and to the sound recordings which they allege him to have infringed.



76. Counterclaim plaintiff is further entitled to costs and a reasonable attorney?s fee and such other relief as may be just.



WHEREFORE, Defendant demands judgment:



a. against the Plaintiffs, and each of them, dismissing their causes of action and awarding Defendant his costs, disbursements and attorneys fees if and as allowed by law;



b. awarding Defendant damages on his counterclaims inclusive of his costs, disbursements and attorneys fees if and as allowed by law; and



c. for such other, different, additional and further relief as the Court deems just and equitable.



Dated: Valhalla, New York, 29 January 2007