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`American Hellenic Educational
`Progressive Association,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF OHIO
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`Case No. 1:19-cv-01814-DAP
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`ANSWER AND COUNTERCLAIMS
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`Plaintiff,
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`PicRights Ltd.
`PicRights Europe GmbH
`Agence France-Presse,
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`Defendants.
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`Defendant AGENCE FRANCE-PRESSE, respectfully submits this Answer and
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`accompanying Counterclaims in response to the Complaint filed by in the above-captioned
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`matter:
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`ANSWER
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`Defendant hereby responds to the allegation(s) contained in each of the numbered
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`paragraphs in the Plaintiff’s Complaint as follows:
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`1. Defendant denies knowledge or information sufficient to form a belief as to the truth
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`of the allegation(s) in Paragraph 1, and thereby denies the allegations contained in Paragraph 1.
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`2. Defendant denies knowledge or information sufficient to form a belief as to the truth
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`of the allegation(s) in Paragraph 2, and thereby denies the allegations contained in Paragraph 2.
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`3. Defendant admits to the allegation(s) contained in Paragraph 3.
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`4. Defendant denies knowledge or information sufficient to form a belief as to the truth
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`of the allegation(s) in Paragraph 4, and thereby denies the allegations contained in Paragraph 4.
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`5. Defendant denies knowledge or information sufficient to form a belief as to the truth
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`of the allegation(s) in Paragraph 5, and thereby denies the allegations contained in Paragraph 5.
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`Case: 1:19-cv-01814-DAP Doc #: 10 Filed: 11/15/19 2 of 10. PageID #: 82
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`6. The allegations contained in Paragraph 6 are irrelevant as Higbee & Associates is not
`a party to the action or an owner of the subject copyright. Defendant further notes that
`the basis for the allegations is inane as a Google search produces more than 14,000
`results for the term “Bigfoot In Ohio Federal Court” and “Gugliotta copyright troll.”
`Defendant denies the allegation(s) in Paragraph 6.
`7. Defendant denies the allegation(s) in Paragraph 7.
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`8. The allegation(s) contained in Paragraph 8 contain legal conclusions to which no
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`response is required. To the extent any response is required, Defendant denies the allegation(s)
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`contained in Paragraph 8.
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`9. The allegation(s) contained in Paragraph 9 contain legal conclusions to which no
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`response is required. To the extent any response is required, Defendant denies the allegation(s)
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`contained in Paragraph 8.
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`10. The allegation(s) contained in Paragraph 10 contain legal conclusions to which no
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`response is requiredTo the extent any response is required, Defendant denies the allegation(s)
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`contained in Paragraph 10.
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`11. The allegation(s) contained in Paragraph 11 contain legal conclusions to which no
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`response is required. To the extent any response is required, Defendant denies the allegation(s)
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`contained in Paragraph 11.
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`12. Defendant admits that The Law Firm of Higbee & Associates sent the
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`Plaintiff the letter (dated June 7, 2019) and attachments that are appended to the Complaint as
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`“Exhibit D” (Doc #1-5) and referenced in Paragraph 12. Defendant denies the Plaintiff’s
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`characterization of the letter as a “cease and desist letter” and denies the Plaintiff’s
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`characterization of The Law Firm of Higbee & Associates as a “Copyright Troll”.
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`13. Defendant admits that the aforementioned letter (dated June 7, 2019) was sent from
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`Case: 1:19-cv-01814-DAP Doc #: 10 Filed: 11/15/19 3 of 10. PageID #: 83
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`The Law Firm of Higbee & Associates and signed by Attorney Mathew K. Higbee. Defendant
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`denies that The Law Firm of Higbee & Associates purported in that letter to be “attorney in fact”
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`14. Defendant denies the allegation(s) in Paragraph 14.
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`15. Defendant denies the allegation(s) in Paragraph 15.
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`16. Defendant denies the allegation(s) in Paragraph 16.
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`17. The allegation(s) contained in Paragraph 17 contain legal conclusions to which no
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`response is required. To the extent any response is required, Defendant denies the allegation(s)
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`contained in Paragraph 34.
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`18. Defendant denies the allegation(s) in Paragraph 18.
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`19. Defendant denies the allegation(s) in Paragraph 19.
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`20. Defendant denies the allegation(s) in Paragraph 20.
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`21. Defendant denies the allegation(s) in Paragraph 21.
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`22. Defendant admits that the Plaintiff’s claim purports to arise under the Declaratory
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`Judgment Act, 28 USC § 2201 et seq., and the copyright laws of the United States, 17 USC § 101
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`et seq., and that the Plaintiff is seeking the declaratory judgment as described. Defendant denies
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`that the Plaintiff is entitled to such declaratory judgment, and denies the remainder of Paragraph
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`22.
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`23. Defendant denies the allegation(s) in Paragraph 23.
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`24. Defendant denies the allegation(s) in Paragraph 24.
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`25. Defendant denies the allegation(s) in Paragraph 25.
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`26. Defendant admits that the Plaintiff is seeking such a declaratory judgment in this
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`action. Defendant denies that the Plaintiff is entitled to such a declaratory judgment.
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`27. Defendant denies the allegation(s) in Paragraph 27.
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`28. Defendant admits that the Plaintiff’s claim purports to arise under the Declaratory
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`Case: 1:19-cv-01814-DAP Doc #: 10 Filed: 11/15/19 4 of 10. PageID #: 84
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`Judgment Act, 28 USC § 2201 et seq., and the copyright laws of the United States, 17 USC § 101
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`et seq., and that the Plaintiff is seeking the declaratory judgment as described. Defendant denies
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`that the Plaintiff is entitled to such declaratory judgment, and denies the remainder of Paragraph
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`28.
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`29. Defendant admits that one or more of the defendants named in this action is the
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`assignee and owner of the copyrighted materials which gave rise to this action.
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`30. Defendant denies the allegation(s) in Paragraph 30.
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`31. Defendant denies the allegation(s) in Paragraph 31.
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`32. Defendant denies the allegation(s) in Paragraph 32. To the extent any response is
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`required, Defendant denies the allegation(s) contained in Paragraph 32.
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`33. The allegation(s) contained in Paragraph 33 contain legal conclusions to which no
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`response is required. To the extent any response is required, Defendant denies the allegation(s)
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`contained in Paragraph 33.
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`34. The allegation(s) contained in Paragraph 34 contain legal conclusions to which no
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`response is required. To the extent any response is required, Defendant denies the allegation(s)
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`contained in Paragraph 34.
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`35. Defendant admits that the copyrighted images giving rise to this action were not
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`affixed with any copyright mark or copyright notice but denies that this fact provides the Plaintiff
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`any legal defense against copyright infringement liability.
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`36. Defendant denies the allegation(s) in Paragraph 36.
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`37. Defendant denies the allegation(s) in Paragraph 37.
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`38. Defendant admits that the copyrighted images giving rise to this action were not
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`Case: 1:19-cv-01814-DAP Doc #: 10 Filed: 11/15/19 5 of 10. PageID #: 85
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`affixed with any copyright mark or copyright notice but denies that this fact provides the Plaintiff
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`any legal defense against copyright infringement liability. Defendant also denies that AHEPA
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`was not aware of or did not have reason to know its actions constituted copyright infringement.
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`39. Defendant denies the allegation(s) in Paragraph 39.
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`40. Defendant denies the allegation(s) in Paragraph 40.
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`41. Defendant denies the allegation(s) in Paragraph 41.
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`42. Defendant denies the allegation(s) in Paragraph 42.
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`43. Defendant denies the allegation(s) in Paragraph 43.
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`44. Defendant denies the allegation(s) in Paragraph 44.
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`45. Defendant admits the allegation(s) contained in Paragraph 45.
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`46. Defendant admits the allegation(s) contained in Paragraph 46 only to the extent that it
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`appears to be an accurate quotation from a decision of the Ninth Circuit Court of Appeals, but
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`denies that this standard for awarding attorney’s fees, as articulated in the quoted Ninth Circuit
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`decision, is binding on this Court. Even if binding on this Court or otherwise applicable,
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`Defendant denies that the Plaintiff is entitled to any award of attorney’s fees.
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`47. Defendant admits the allegation(s) contained in Paragraph 47 only to the extent that
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`they appear to be accurate quotations from certain decisions of the Ninth Circuit Court of Appeals
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`and the United States Supreme Court. Defendant denies that the Plaintiff is entitled to any award
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`of attorney’s fees.
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`48. Defendant denies the allegation(s) in Paragraph 48.
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`COUNTERCLAIMS
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`Case: 1:19-cv-01814-DAP Doc #: 10 Filed: 11/15/19 6 of 10. PageID #: 86
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`Agence France-Presse (hereinafter “Counterclaim Plaintiff” or “AFP”) hereby asserts the
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`following counterclaims against American Hellenic Educational Progressive Association
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`(hereinafter “Counterclaim Defendant” or “AHEPA”):
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`Jurisdiction & Venue
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`1. This is a civil action seeking damages and injunction relief for copyright
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`infringement under the Copyright Act of the United States, 17 U.S.C. § 101 et seq.
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`2. This Court has subject-matter jurisdiction over Counterclaim Plaintiff’s claims
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`for copyright infringement pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1338(a).
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`3. This Court has personal jurisdiction over Counterclaim Defendant because
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`Counterclaim Defendant conducts business and/or resides within this judicial district,
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`Counterclaim Defendant’s acts of infringement complained of herein occurred in this judicial
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`district, and Counterclaim Defendant caused injury to Counterclaim Plaintiff within this judicial
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`district.
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`4. Venue in this judicial district is proper under 28 U.S.C. § 1391(c) and 1400(a) in
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`that this is the judicial district in which a substantial part of the acts and omissions giving rise to
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`the claims occurred. Alternatively, venue is proper pursuant to 28 U.S.C. § 1400(b) because
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`the Counterclaim Defendant resides and has a regular and established place of business in this
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`judicial district.
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`Parties
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`5. Counterclaim Plaintiff (AFP) is an international news agency headquartered in Paris,
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`France. It was founded in 1835 and is the world's oldest news agency, with with regional
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`headquarters in Europe, Asia, and North America, and news bureaux in over 150 countries.
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`6. Counterclaim Defendant (AHEPA) a fraternal organization with chapters across the
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`Case: 1:19-cv-01814-DAP Doc #: 10 Filed: 11/15/19 7 of 10. PageID #: 87
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`United States, including in Cuyahoga County, Ohio. On information and belief, AHEPA
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`generates hundreds of thousands, if not millions, of dollars in revenue from membership fees,
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`charitable contributions and donations, and other sources.
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`Factual Allegations
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`7. AFP is an international news agency headquartered in Paris, France. It was founded in
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`1835 and is the world's oldest news agency, with with regional headquarters in Europe, Asia, and
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`North America, and news bureaux in over 150 countries.
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`8. AFP is and was at all relevant times the sole rights holder of the
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`following four unique and original copyrighted materials which gave rise to this
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`action (individually attached as “Exhibits 1-4” and hereinafter collectively referred
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`to as the “Copyrighted Images”):
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`Exhibit
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`Exhibit 1
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`AFP Image # Date of Registration
`w/US Copyright Office
`05-07-2015
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`462734632
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`Registration #
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`VA0002129693
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`Exhibit 2
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`486851901
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`11-11-2014
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`Exhibit 3
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`473510366
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`07-16-2015
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`Exhibit 4
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`472984578
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`07-16-2015
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`VA0002129685
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`VA0002129698
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`VA0002129698
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`9. At all relevant times, Counterclaim Defendant (AHEPA) owned, operated, or
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`otherwise controlled the following internet website and its affiliated webpages: https://ahepa.org
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`(hereinafter the “AHEPA website”).
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`10. On information and belief, AHEPA generates hundreds of thousands, if not millions,
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`of dollars in revenue from membership fees, charitable contributions and donations, and other
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`Case: 1:19-cv-01814-DAP Doc #: 10 Filed: 11/15/19 8 of 10. PageID #: 88
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`11. The AHEPA website is one of the ways through which AHEPA communicates its
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`messages, events and activities to its members and the general public, and is one of the ways
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`through which it reaches thousands of potential members, donors and contributors to its
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`organization.
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`12. AFP has never transferred or otherwise assigned its rights to the Copyrighted
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`Images to any persons or entities.
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`13. AFP has never consented to, authorized, permitted, allowed, or given AHEPA a
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`license (express or otherwise) to use AFP’s unique and original Copyrighted Images on
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`AHEPA’s internet website or in any other capacity.
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`14. In or about 2019, AFP discovered that AHEPA had been unlawfully using AFP’s
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`Copyrighted Images on AHEPA’s website without a license, permission or authority. Many or
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`all of the Copyrighted Images had been displayed on AHEPA’s website next to paid
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`advertisements which provided AHEPA an additional source of income (in addition to
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`membership fees, donations, and other sources of revenue).
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`15. Attached hereto as Exhibit 5 are true and correct internet screenshots of AHEPA’s
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`unlawful use of each of AFP’s Copyrighted Images (Exhibits 1-4) on AHEPA’s website.
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`16. AHEPA’s unlawful, unauthorized use of the Copyrighted Images were deliberate and
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`willful because AHEPA knew or should have known that the Copyrighted Images were registered
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`and subject to protection under US copyright law, and knew or should have known that it had not
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`obtained a prior license or permission to use the Copyrighted Images in the manner that it did.
`17. FP, through its counsel, made an earnest attempt to resolve this matter out of court. It
`sent letters and email communication to AHEPA and then its counsel. Instead of working with
`AFP through its counsel to resolve the matter out of court, AHEPA retained counsel who
`apparently preferred to rush the parties to court after he relied on the opinion of ill-informed
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`Case: 1:19-cv-01814-DAP Doc #: 10 Filed: 11/15/19 9 of 10. PageID #: 89
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`bloggers and case law that has not been relevant since the Berne Convention Implementation Act
`of 1988 was enacted in March of 1989— more than three decades ago.
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`First Cause of Action
`(Copyright Infringement)
`17 .S.C. § 101 et seq.
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`17. AFP incorporates by reference all of the above paragraphs as though fully stated
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`herein.
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`18. AFP has never consented to, authorized, permitted, allowed, or given AHEPA a
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`license (express or otherwise) to use AFP’s unique and original Copyrighted Images on AHEPA’s
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`internet website or in any other capacity.
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`19. AHEPA willfully infringed upon AFP’s Copyrighted Images in violation of Title 17 of
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`the U.S. Code, in that it used, published, communicated, benefited through, posted, publicized,
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`and otherwise held out to the public for commercial benefit, the original and unique Copyrighted
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`Images belonging to AFP without AFP’s consent and without authority, and acquired monetary
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`gain and market benefit as a result.
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`20. As result of AHEPA’s violations of Title 17 of the U.S. Code, AFP is entitled to any
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`actual damages pursuant to 17 U.S.C. §504(b), or statutory damages as set forth under 17 U.S.C.
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`§ 504(c)
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`21. AFP is also entitled to injunctive relief, pursuant to 17 U.S.C. § 502, to prevent or
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`restrain AHEPA and any of its agents from committing any further or ongoing acts of
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`infringement of AFP’s copyrighted materials, including the Copyrighted Images at issue in this
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`matter.
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`22. As a result of AHEPA’s violations of Title 17 of the U.S. code, the Court in its
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`Case: 1:19-cv-01814-DAP Doc #: 10 Filed: 11/15/19 10 of 10. PageID #: 90
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`discretion may allow the recovery of reasonable attorney’s fees and costs pursuant to 17 U.S.C
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`§505.
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`Prayer for Relief
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`WHEREFORE, Counterclaim Plaintiff (AFP) prays for judgment against the
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`Counterclaim Defendant (AHEPA) as follows:
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`A. For an award of actual damages and disgorgement of all of AHEPA’s profits
`attributable to the infringements as provided by 17 U.S.C. § 504 in an amount
`to be proven or, in the alternative, at Counterclaim Plaintiff’s election, an
`award for the maximum justifiable statutory damages against the Counterclaim
`Defendant for each infringement pursuant to 17 U.S.C. § 504(c), whichever is
`larger;
`B. For costs of litigation and reasonable attorney’s fees against the Counterclaim
`Defendant pursuant to 17 U.S.C. § 505;
`C. For an injunction preventing the Counterclaim Defendant (including its agents)
`from further infringement of any and all copyrighted materials of the the
`Counterclaim Plaintiff pursuant to 17 U.S.C. § 502;
`D. For any other relief the Court deems just and proper.
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`Dated this 15th day of Nov. 2019
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` /s/ Mathew K. Higbee
`Mathew K. Higbee, Esq.
`HIGBEE & ASSOCIATES
`1504 Brookhollow Drive, Suite 112
`Santa Ana, CA 92705-5418
`Phone: (714) 617-8385
`Fax: (714) 617-8511
`Email: mhigbee@higbeeassociates.com
`Attorney for Defendant
`AGENCE FRANCE-PRESSE
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