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`Case 3:10-cv-05696-CRB Document 107 Filed 08/26/11 Page 1 of 8
`
`
`
`KENNETH E. KELLER (SBN 71450) kkeller@kksrr.com
`ANNE E. KEARNS (SBN 183336) akearns@kksrr.com
`GARTH A. ROSENGREN (SBN 215732) grosengren@kksrr.com
`KRIEG, KELLER, SLOAN, REILLEY & ROMAN LLP
`555 Montgomery Street, 17th Floor
`San Francisco, CA 94111
`Telephone:
`(415) 249-8330
`Facsimile:
`(415) 249-8333
`
`STEVAN H. LIEBERMAN (Pro Hac Vice) stevan@aplegal.com
`GREENBERG & LIEBERMAN, LLC
`2141 Wisconsin Ave., NW Suite C2
`Washington, DC 20007
`Telephone:
`(202) 625-7000
`Facsimile:
`(202) 625-7001
`Attorneys for Plaintiff
`AMARETTO RANCH BREEDABLES, LLC
`
`UNITED STATES DISTRICT COURT
`
`AMARETTO RANCH BREEDABLES, LLC, a
`California Limited Liability Corporation
`
`Plaintiff,
`
`
`
`
`
`
`
`v.
`
`NORTHERN DISTRICT OF CALIFORNIA
`
` CASE No.: CV 10-5696 CRB
`
`
`
`
`AMARETTO RANCH BREEDABLES,
`LLC’S ANSWER TO DEFENDANT
`OZIMALS, INC.’S COUNTERCLAIM
`
`
`
`OZIMALS, INC., an Alabama corporation;
`CANDACE SARGENT, an individual; CAMERON
`HOLT, an individual; CREATIVE ACORN
`STUDIOS, an Alabama entity.
`
`
`
`
`
`
`
`
`
`Defendants.
`
`OZIMALS, INC., an Alabama corporation,
`
`Counterclaim Plaintiff,
`
`
`
`
`
`
`
`v.
`
`AMARETTO RANCH BREEDABLES, LLC, a
`California Limited Liability Corporation,
`
`
`
`
`
`Counterclaim Defendant.
`
`1
`________________________________________________________________________________
`AMARETTO RANCH BREEDABLES, LLC’S ANSWER
`TO DEFENDANT OZIMALS, INC.’S COUNTERCLAIM
`CASE No.: CV 10-5696 CRB
`
`

`

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`Case 3:10-cv-05696-CRB Document 107 Filed 08/26/11 Page 2 of 8
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`
`
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`Plaintiff and Counterclaim Defendant, Amaretto Ranch Breedables, LLC (“Amaretto”)
`
`hereby submits the following Answer and Affirmative Defenses to the Counterclaim of Defendant
`
`Ozimals, Inc. (“Ozimals”), in paragraphs numbered to correspond to those of the Counterclaim.
`
`THE PARTIES
`
`1.
`
`As to Paragraph 1 of the Counterclaim, Amaretto admits that Ozimals is purporting to
`
`assert a claim for copyright infringement of its software code in its Counterclaim and is seeking a
`
`permanent injunction and damages against Amaretto, a California limited liability company.
`
`Amaretto denies the remaining allegations of Paragraph 1 of the Counterclaim.
`2.
`3.
`
`Amaretto admits the allegations of Paragraph 2 of the Counterclaim.
`
`As to Paragraph 3 of the Counterclaim, Amaretto admits that Ozimals is an Alabama
`
`corporation with its principal place of business located in Pelham, Alabama. Amaretto admits that
`
`Ozimals purports to develop, market, and distribute virtual breedable bunnies and associated
`
`products in the virtual Second Life world. Amaretto lacks knowledge or information sufficient to
`
`form a belief about the truth of the remaining allegations of Paragraph 3 and on that basis, denies
`
`them.
`
`4.
`5.
`6.
`
`Amaretto admits the allegations of Paragraph 4 of the Counterclaim.
`
`Amaretto admits the allegations of Paragraph 5 of the Counterclaim.
`
`As to Paragraph 6 of the Counterclaim, Amaretto admits that venue is proper in this
`
`Court. Amaretto denies the remaining allegations of Paragraph 6 of the Counterclaim.
`7.
`8.
`
`Amaretto admits the allegations of Paragraph 7 of the Counterclaim.
`
`Amaretto admits that Ozimals purports to have developed a line of software-based,
`
`virtual bunnies for use on Second Life, and that users may buy and sell bunnies in a secondary
`
`market, and breed and collect them. Amaretto admits that each software-based bunny is capable of
`
`breeding with other bunnies. Amaretto denies the remaining allegations of Paragraph 8 of the
`
`Counterclaim.
`9.
`
`Amaretto lacks knowledge or information sufficient to form a belief about the truth of
`
`the allegations in Paragraph 9 of the Counterclaim that Ozimals’ bunnies were first made available
`
`2
`________________________________________________________________________________
`AMARETTO RANCH BREEDABLES, LLC’S ANSWER
`TO DEFENDANT OZIMALS, INC.’S COUNTERCLAIM
`CASE No.: CV 10-5696 CRB
`
`

`

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`Case 3:10-cv-05696-CRB Document 107 Filed 08/26/11 Page 3 of 8
`
`
`
`
`to certain users of Second Life in September of 2009 as part of the beta-testing of the software
`
`conducted by Ozimals, and on that basis, denies them. Amaretto denies the remaining allegations of
`
`Paragraph 9 of the Counterclaim.
`10.
`
`As to Paragraph 10 of the Counterclaim, upon information and belief, Amaretto
`
`admits that on January 9, 2010, Ozimals made the bunnies generally available by selling them on
`
`Second Life. Amaretto denies the remaining allegations of Paragraph 10 of the Counterclaim.
`11.
`
`As to Paragraph 11 of the Counterclaim, Amaretto admits that a person purporting to
`
`act on behalf of Amaretto “chatted” on-line with Candace Sargent, and avers that the contents of that
`
`on-line “chat” speaks for itself. Amaretto denies the remaining allegations of Paragraph 11 of the
`
`Counterclaim.
`12.
`
`As to Paragraph 12 of the Counterlcaim, Amaretto admits that in September 2010,
`
`Amaretto released its software horses and related software products. Amaretto denies the remaining
`
`allegations of Paragraph 12 of the Counterclaim.
`13.
`14.
`
`Amaretto denies the allegations of Paragraph 13 of the Counterclaim.
`
`As to Paragraph 14 of the Counterclaim, Amaretto admits that on November 2, 2010,
`
`Ozimals sent Amaretto a cease and desist letter, and further avers that the contents of that letter
`
`speaks for itself. Amaretto admits that on November 22, 2010, Amaretto responded to the
`
`November 2, 2010 letter, and avers that the contents of that letter speaks for itself. Amaretto denies
`
`the remaining allegations of Paragraph 14 of the Counterclaim.
`15.
`
`Amaretto admits that on December 1, 2010, Ozimals submitted a letter to Linden
`
`Labs, which it purported to be a “takedown notice” and that Linden informed Amaretto of the letter.
`
`Amaretto further admits that on December 9, 2010, Amaretto submitted a counter-notification to
`
`Linden Labs. Amaretto denies the remaining allegations of Paragraph 14 of the Counterclaim.
`16.
`
`Amaretto admits that Ozimals filed a lawsuit on December 20, 2010 styled Ozimals,
`
`Inc. v. Amaretto Ranch Breedables, LLC, No 10-cv-03520 (N.D. Ala 2010) and avers that the
`
`contents of that lawsuit speak for itself. Amaretto admits that Ozimals did not serve Amaretto with
`
`that complaint and voluntarily dismissed the Alabama action, and avers that the Court issued an
`
`3
`________________________________________________________________________________
`AMARETTO RANCH BREEDABLES, LLC’S ANSWER
`TO DEFENDANT OZIMALS, INC.’S COUNTERCLAIM
`CASE No.: CV 10-5696 CRB
`
`

`

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`Case 3:10-cv-05696-CRB Document 107 Filed 08/26/11 Page 4 of 8
`
`
`
`
`Order to Show Cause to Ozimals why the complaint had not yet been served. Amaretto denies the
`
`remaining allegations of Paragraph 16 of the Counterclaim.
`17.
`
`Amaretto admits that Ozimals’ Counterclaim purports to seek affirmative relief for a
`
`claim of copyright infringement. Amaretto denies any remaining allegations of Paragraph 17 of the
`
`Counterclaim.
`
`FIRST CLAIM
`
`Copyright Infringement – 17 U.S.C. § 501 et seq.
`
`18.
`
`Amaretto repeats and incorporates by reference its responses to Paragraphs 1 through
`
`17, inclusive of its Answer to the Counterclaim.
`19.
`
`As to Paragraph 17 of the Counterclaim, Amaretto admits the Copyright Office
`
`granted Ozimals a Certificate of Registration No. TX 7-251-661 to Ozimals, but avers that the
`
`registration is invalid and was otherwise fraudulently obtained. Amaretto denies the remaining
`
`Amaretto denies the allegations of Paragraph 20 of the Counterclaim.
`
`Amaretto denies the allegations of Paragraph 21 of the Counterclaim.
`
`Amaretto denies the allegations of Paragraph 22 of the Counterclaim.
`
`allegations of Paragraph 19 of the Counterclaim.
`20.
`21.
`22.
`23.
`
`Amaretto denies the allegations of Paragraph 23 of the Counterclaim.
`
`
`
`As separate defenses to Ozimals’ Counterclaim, Amaretto alleges as follows:
`
`AFFIRMATIVE DEFENSES
`
`FIRST AFFIRMATIVE DEFENSE
`
`(Failure to State a Cause of Action)
`
`1.
`
`Ozimals’ claims are barred because it has failed to state a cause of action upon which
`
`relief may be granted.
`
`SECOND AFFIRMATIVE DEFENSE
`
`(Plaintiff Lacks Standing)
`
`2.
`
`Ozimals’ claims are barred because Ozimals is not the real party in interest and lacks
`
`standing to pursue the claims at issue.
`
`4
`________________________________________________________________________________
`AMARETTO RANCH BREEDABLES, LLC’S ANSWER
`TO DEFENDANT OZIMALS, INC.’S COUNTERCLAIM
`CASE No.: CV 10-5696 CRB
`
`

`

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`Case 3:10-cv-05696-CRB Document 107 Filed 08/26/11 Page 5 of 8
`
`
`
`
`THIRD AFFIRMATIVE DEFENSE
`
`(Lack of Authorship)
`
`3.
`
`Ozimals’ claims are based barred because Ozimals is not the author of the work
`
`which is the subject of the copyright being asserted.
`
`FOURTH AFFIRMATIVE DEFENSE
`
`(Plaintiff Does Not Own Valid Copyright)
`
`4.
`
`Ozimals’ claims are barred because Ozimals does not own a valid and/or enforceable
`
`copyright in the work allegedly infringed.
`
`FIFTH AFFIRMATIVE DEFENSE
`
`(Lack of Copyright Liability)
`
`5.
`
`Ozimals’ counterclaim is barred because the material Ozimals claims was infringed is
`
`not copyrightable because, among other things, it is not sufficiently creative or original.
`
`SIXTH AFFIRMATIVE DEFENSE
`
`(Independent Creation)
`
`6.
`
`Ozimals’ claims are barred because Amaretto’s allegedly infringing materials were
`
`created independently from Ozimals’ alleged work.
`
`SEVENTH AFFIRMATIVE DEFENSE
`
`(Lack of Substantial Similarity)
`
`7.
`
`Ozimals’ claims are barred because the respective works at issue are not substantially
`
`similar.
`
`EIGHTH AFFIRMATIVE DEFENSE
`
`(Non-Copyrightable, Ideas and/or Subject Matter)
`
`8.
`
`Ozimals’ claims are barred because the subject matter identified in the Counterclaim
`
`is not copyrightable, among other things, because it is not sufficiently creative or original, it is in the
`
`public domain, it consists of scenes à faire, and/or because the similarities, if any, between Ozimals’
`
`alleged work and the product sold by Amaretto relate to a nonprotectable idea, and hence
`
`nonprotectable subject matter under the Federal Copyright Act.
`
`5
`________________________________________________________________________________
`AMARETTO RANCH BREEDABLES, LLC’S ANSWER
`TO DEFENDANT OZIMALS, INC.’S COUNTERCLAIM
`CASE No.: CV 10-5696 CRB
`
`

`

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`Case 3:10-cv-05696-CRB Document 107 Filed 08/26/11 Page 6 of 8
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`
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`NINTH AFFIRMATIVE DEFENSE
`
`(Invalid Copyright Registration)
`
`9.
`
`Ozimals’ claims are barred because the copyright registration is invalid.
`
`TENTH AFFIRMATIVE DEFENSE
`
`(Fair Use)
`
`10.
`
`Ozimals’ claims are barred by one or more provisions of 17 U.S.C. § 107, et seq., in
`
`that Amaretto’s use of any of Ozimals’ purported intellectual property, to the extent that Ozimals’
`
`used any such property, amounted to fair use.
`
`ELEVENTH AFFIRMATIVE DEFENSE
`
`(De Minimus Use)
`
`11.
`
`Ozimals’ claims are barred because Amaretto’s use of any of Ozimals’ purported
`
`intellectual property, to the extent that Amaretto used any such property, amounted to de minimus
`
`use.
`
`TWELFTH AFFIRMATIVE DEFENSE
`
`(Copyright Misuse)
`
`12.
`
`Ozimals’ claims are barred because Ozimals has engaged in copyright misuse.
`
`THIRTEENTH AFFIRMATIVE DEFENSE
`
`(First Amendment)
`
`13.
`
`Ozimals’ claims are barred by the First Amendment to the United States Constitution,
`
`in that to the extent Amaretto engaged in any of the conduct alleged herein, such conduct was
`
`protected speech.
`
`FOURTEENTH AFFIRMATIVE DEFENSE
`
`(Estopel)
`
`14.
`
`Ozimals’ claims are barred by the doctrine of estoppel.
`
`FIFTEENTH AFFIRMATIVE DEFENSE
`
`(Unclean Hands)
`
`15.
`
`Ozimals’ claims are barred by the doctrine of unclean hands.
`
`6
`________________________________________________________________________________
`AMARETTO RANCH BREEDABLES, LLC’S ANSWER
`TO DEFENDANT OZIMALS, INC.’S COUNTERCLAIM
`CASE No.: CV 10-5696 CRB
`
`

`

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`Case 3:10-cv-05696-CRB Document 107 Filed 08/26/11 Page 7 of 8
`
`
`
`
`SIXTEENTH AFFIRMATIVE DEFENSE
`
`(Waiver)
`
`16.
`
`Ozimals’ claims are barred because Ozimals has waived any recovery it might
`
`otherwise have been entitled to against Amaretto based on the allegations in the Counterclaim,
`
`including but not limited to, by its knowledge of Amaretto’s use of the products at issue.
`
`SEVENTEENTH AFFIRMATIVE DEFENSE
`
`(Innocent Conduct)
`
`17.
`
`Ozimals’ claims are barred in that any alleged conduct by Amaretto was innocent, not
`
`deliberate or willful.
`
`EIGHTEENTH AFFIRMATIVE DEFENSE
`
`(Lack of Statutory Damages and/or Attorney’s Fees)
`
`18.
`
`Ozimals’ claim for statutory damages and/or attorney’s fees is barred under 17 USC §
`
`412 because Ozimals did not timely register the alleged copyrighted work before bringing suit.
`
`NINETEENTH AFFIRMATIVE DEFENSE
`
`(Offset)
`
`19.
`
`Ozimals is barred from recovery to the extent that any amounts due and owing to
`
`Ozimals is offset by those amounts due and owing to Amaretto.
`
`TWENTITH AFFIRMATIVE DEFENSE
`
`(Injunctive Relief Not Warranted)
`
`20.
`
`No threat of immediate harm exists sufficient to support a grant of injunctive relief.
`
`
`
`Amaretto reserves the right to raise additional affirmative defenses as may be discovered
`
`during the course of these proceedings.
`
`WHEREFORE, Amaretto prays as follows:
`1.
`2.
`3.
`
`That Ozimals takes nothing by reason of his Counterclaim;
`
`That Ozimals’ Counterclaim be dismissed;
`
`That Amaretto be awarded attorneys’ fees and costs of suit incurred in this action; and
`
`7
`________________________________________________________________________________
`AMARETTO RANCH BREEDABLES, LLC’S ANSWER
`TO DEFENDANT OZIMALS, INC.’S COUNTERCLAIM
`CASE No.: CV 10-5696 CRB
`
`

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`Case 3:10-cv-05696-CRB Document 107 Filed 08/26/11 Page 8 of 8
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`4.
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`That Amaretto be awarded such other and further relief as this court may deem just
`
`and proper.
`
`
`
`
`
`
`Dated: August 26, 2011
`
`KRIEG, KELLER, SLOAN, REILLEY & ROMAN LLP
`
`By: _______________/s/_______________________
`KENNETH E. KELLER
`Attorneys for Plaintiff and Counterclaim Defendant
`AMARETTO RANCH BREEDABLES, LLC
`
`8
`________________________________________________________________________________
`AMARETTO RANCH BREEDABLES, LLC’S ANSWER
`TO DEFENDANT OZIMALS, INC.’S COUNTERCLAIM
`CASE No.: CV 10-5696 CRB
`
`