Case: 1:12-cv-01885 Document #: 26 Filed: 05/17/13 Page 1 of 20 PageID #:296
`
`
`
`
`
`
`Flava Works, Inc.,
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`
`
`Frank Rossi,
`
`
`
`
`
`Defendant
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Case No. 1:12-cv-01885
`
`Hon. Judge Joan H Lefkow
`
`JURY DEMANDED
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`DEFENDANT FRANK ROSSI’S ANSWER AND COUNTERCLAIM TO
`PLAINTIFF’S THIRD AMENDED COMPLAINT
`
`Now comes, Defendant FRANK ROSSI ("Defendant"), by and through his
`
`attorneys, Saper Law Offices, LLC, to answer Plaintiff’s Third Amended Complaint
`
`against him alleging copyright infringement, and denies any and all such allegations, and
`
`further admits or denies the specific allegations of the Complaint, as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`This is an action for copyright infringement pursuant to the Copyright Act,
`
`17 U.S.C. § 101 et seq.; Plaintiff brings this action to stop Defendant from infringing,
`
`promoting, encouraging, enabling and facilitating the infringement of Plaintiff’s
`
`copyrights (collectively “Flava Works’ Intellectual Property”) on the Internet.
`
`ANSWER: Defendant admits that this is an action for copyright infringement pursuant to
`
`the Copyright Act, 17 U.S.C. § 101 et seq.; Defendant denies each and every other
`
`allegation in Paragraph 1.
`
`
`
`1
`
`
`
`
`
`
`
`
`Flava Works, Inc.,
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`
`
`Frank Rossi,
`
`
`
`
`
`Defendant
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Case No. 1:12-cv-01885
`
`Hon. Judge Joan H Lefkow
`
`JURY DEMANDED
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`DEFENDANT FRANK ROSSI’S ANSWER AND COUNTERCLAIM TO
`PLAINTIFF’S THIRD AMENDED COMPLAINT
`
`Now comes, Defendant FRANK ROSSI ("Defendant"), by and through his
`
`attorneys, Saper Law Offices, LLC, to answer Plaintiff’s Third Amended Complaint
`
`against him alleging copyright infringement, and denies any and all such allegations, and
`
`further admits or denies the specific allegations of the Complaint, as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`This is an action for copyright infringement pursuant to the Copyright Act,
`
`17 U.S.C. § 101 et seq.; Plaintiff brings this action to stop Defendant from infringing,
`
`promoting, encouraging, enabling and facilitating the infringement of Plaintiff’s
`
`copyrights (collectively “Flava Works’ Intellectual Property”) on the Internet.
`
`ANSWER: Defendant admits that this is an action for copyright infringement pursuant to
`
`the Copyright Act, 17 U.S.C. § 101 et seq.; Defendant denies each and every other
`
`allegation in Paragraph 1.
`
`
`
`1
`
`
`
`Case: 1:12-cv-01885 Document #: 26 Filed: 05/17/13 Page 2 of 20 PageID #:297
`
`
`
`2.
`
`Plaintiffs bring this action to stop Defendant from continuing to
`
`encourage, enable and contribute to the infringement of Plaintiffs copyrights on the
`
`Internet. Defendant joined Flava Works’ paid membership-only websites, agreed to Flava
`
`Works’ terms and services. On information and belief, in violation of the agreed to terms
`
`and services, Defendant downloaded copyrighted videos owned by Flava Works, and
`
`copied and distributed the aforesaid copyrighted videos, via a peer to peer technology and
`
`via a publicly accessible online file storage site.
`
`ANSWER: Defendant admits that he joined Flava Works’ websites. Defendant denies
`
`each and every other allegation in Paragraph 2.
`
`THE PARTIES
`
`3.
`
`Plaintiff is incorporated under the laws of the State of Florida with its
`
`principal place of business at 2610 N. Miami Ave., Miami, Florida 33127 and in
`
`Chicago, Illinois at 933 W. Irving Park Rd., Ste. C, Chicago, Illinois 60613.
`
`ANSWER: Defendant lacks information sufficient to form a belief as to the facts alleged
`
`in Paragraph 3.
`
`4.
`
`On information and belief, Defendant, Frank Rossi, resides in New York,
`
`New York.
`
`ANSWER: Defendant admits the allegations of Paragraph 4.
`
`JURISDICTION AND VENUE
`
`5.
`
`This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331,
`
`§ 1338 and § 1367; pursuant to the Copyright Act, 17 U.S.C. § 101 et seq..
`
`
`
`2
`
`
`
`Case: 1:12-cv-01885 Document #: 26 Filed: 05/17/13 Page 3 of 20 PageID #:298
`
`
`
`ANSWER: Defendant admits that this Court has jurisdiction over this action pursuant to
`
`28 U.S.C. § 1331 and § 1338. Defendant denies each and every other allegation in
`
`Paragraph 5.
`
`6.
`
`On information and belief, Defendant actively target [sic] the Illinois
`
`market and consumers.
`
`ANSWER: Defendant denies the allegations in Paragraph 6.
`
`7.
`
`This Court has jurisdiction over Defendant, because Defendant is subject
`
`to personal jurisdiction in the State of Illinois under the Illinois Long Arm Statute.
`
`ANSWER: Defendant denies the allegations in Paragraph 7.
`
`8.
`
`Venue is proper in this district under 28 U.S.C. § 1391(b) because a
`
`substantial part of the events or omissions giving rise to the claim occurred, or a
`
`substantial part of property that is the subject of the action is situated, in this district.
`
`ANSWER: Defendant denies the allegations of Paragraph 8.
`
`9.
`
`Defendant joined as a paid member of Plaintiff’s websites. As part of the
`
`paid membership, Defendant agreed that:
`
`11. Miscellaneous
`
`11.1. This Agreement has been made in and shall be construed and enforced in
`accordance with either Illinois or Florida law without regard to any conflict of law
`provisions. You agree that any action to enforce this Agreement shall be brought
`in the federal or state courts located in Chicago, Illinois or Miami, Florida and
`you hereby consent to the personal jurisdiction and venue of the courts located in
`Cook County, Florida or Miami-Dade County, Florida. Exhibit “A”.
`
`
`
`3
`
`
`
`Case: 1:12-cv-01885 Document #: 26 Filed: 05/17/13 Page 4 of 20 PageID #:299
`
`
`
`ANSWER: Defendant admits that he joined as a paid member of Plaintiff’s websites.
`
`Defendant denies each and every other allegation in Paragraph 9.
`
`FACTS
`
`10.
`
`Plaintiff is a corporation that produces adult entertainment in the form of
`
`DVDs, magazines, websites, pictures, streaming video and various other media. Plaintiff
`
`distributes its adult entertainment through various distributors and licensees, as well as
`
`through its websites: www.CocoDorm.com, www.Mixitupboy.com, www.RawRods.com,
`
`and www.ThugBoy.com, among others.
`
`ANSWER: Defendant admits that Plaintiff produces adult entertainment in the form of
`
`websites and other media. Defendant lacks information sufficient to form a belief as to
`
`each and every other fact alleged in Paragraph 10.
`
`11.
`
`Defendant was a paid member of the following websites of the Plaintiff:
`
`CocoDorm.com, PapiCock.com. A copy of Defendant’s website subscription is attached
`
`as Exhibit “B”. The website subscription for the Defendant includes his IP address, his
`
`phone number, his email address, and his personal user name and password.
`
`ANSWER: Defendant admits that he was a paid member of the websites CocoDorm.com
`
`and PapiCock.com. Defendant lacks information sufficient to form a belief as to each
`
`and every other fact alleged in Paragraph 11.
`
`12.
`
`On information and belief, the IP address used for Defendant’s sign up is
`
`registered to Road Runner ISP services and is located in New York, New York, the same
`
`
`
`4
`
`
`
`Case: 1:12-cv-01885 Document #: 26 Filed: 05/17/13 Page 5 of 20 PageID #:300
`
`
`
`city and address provided by Defendant. Attached as Exhibit “C” is a screenshot of a
`
`website that locates IP addresses by city and state. _________________ [sic]
`
`ANSWER: Defendant lacks information sufficient to form a belief as to the allegations
`
`in Paragraph 12.
`
`13.
`
`Defendant agreed to the terms and conditions of the site and agreed that
`
`Defendants would not copy and distribute copyrighted videos of Flava Works. Copies of
`
`Flava Works’ terms and conditions are attached as Exhibit “A”.
`
`ANSWER: Defendant denies that he agreed to the terms and conditions of the site or that
`
`he would not copy and distribute copyrighted videos of Flava Works. Defendant lacks
`
`information sufficient to form a belief as to each and every other fact alleged in
`
`Paragraph 13.
`
`14.
`
`Plaintiff is recognized nationally and internationally as a leader in the field
`
`of production and distribution of adult entertainment due, in large part, to the goodwill
`
`and name recognition associated with its trademarks, as well as the high quality content
`
`that is associated with its copyrighted material.
`
`ANSWER: Defendant lacks information sufficient to form a belief as to the facts alleged
`
`in Paragraph 14.
`
`15.
`
`Plaintiff has applied for or has registered various copyrights for its works,
`
`including the works that were infringed on in this case.
`
`
`
`5
`
`
`
`Case: 1:12-cv-01885 Document #: 26 Filed: 05/17/13 Page 6 of 20 PageID #:301
`
`
`
`ANSWER: Defendant lacks information sufficient to form a belief as to the facts alleged
`
`in Paragraph 15.
`
`16. On information and belief, Defendant infringed on the following 9
`
`copyrighted full length videos of the Plaintiff:
`
`COPYRIGHT REGISTRATION NUMBER
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`PA 1-779-324
`
`PA 1-748-153
`
`
`
`
`
`See attached Group Exhibit “D”.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`EFFECTIVE
`
`DATE OF
`COPYRIGHT
`REGISTRATION
`
`October 31, 2011
`
`August 12, 2011
`
`ANSWER: Defendant denies the allegations contained in Paragraph 16.
`
`17.
`
`On information and belief, Defendant distributed the above-mentioned
`
`files by making them available on websites via peer-to-peer technology and/or via
`
`publicly accessible online file storage site. Attached as Group Exhibit E are screenshots
`
`of websites where these videos were being distributed.
`
`ANSWER: Defendant denies the allegations contained in Paragraph 17.
`
`18.
`
`On information and belief, Fileserve.com, bergfiles.com, rapidlibrary.com,
`
`sharaget.com, and filestube.com, gayking.org, where several of the videos were found,
`
`are publicly accessible online file storage sites. Videos are uploaded onto these file
`
`storage sites, a copy of the video is made and resides on the file storage site servers, and
`
`third party users can download copies of the videos.
`
`
`
`6
`
`
`
`Case: 1:12-cv-01885 Document #: 26 Filed: 05/17/13 Page 7 of 20 PageID #:302
`
`
`
`ANSWER: Defendant lacks information sufficient to form a belief as to the facts alleged
`
`in Paragraph 18.
`
`19.
`
`On information and belief, Defendant uploaded copies of several of the
`
`aforesaid Plaintiff’s copyrighted videos to gaytorrents.net.
`
`ANSWER: Defendant denies the allegations contained in Paragraph 19.
`
`20.
`
`Copies of Plaintiff’s copyrighted videos that were found being distributed
`
`on the aforesaid file storage sites contained a unique embedded code that was assigned to
`
`Defendant when he joined as a paid member of Plaintiff’s website.
`
`ANSWER: Defendant lacks information sufficient to form a belief as to the facts alleged
`
`in Paragraph 20.
`
`21.
`
`Plaintiff has proprietary software that assigns a unique encrypted code to
`
`each member of Plaintiff’s paid websites.
`
`ANSWER: Defendant lacks information sufficient to form a belief as to the facts alleged
`
`in Paragraph 21.
`
`22.
`
`In this case, every time the Defendant downloaded a copy of a copyrighted
`
`video from Plaintiff’s website, it inserts an encrypted code that is only assigned to
`
`Defendant. In this case, the encrypted code for Defendant is: “ebffvs". Copies of the
`
`screenshots of the code from 14 copyrighted videos that were distributed on the Internet
`
`is attached as Group Exhibit “F”.
`
`
`
`7
`
`
`
`Case: 1:12-cv-01885 Document #: 26 Filed: 05/17/13 Page 8 of 20 PageID #:303
`
`
`
`ANSWER: Defendant lacks information sufficient to form a belief as to the facts alleged
`
`in Paragraph 22.
`
`23.
`
`On information and belief, several of Plaintiff’s copyrighted videos were
`
`found on a website called gay-torrents.net using peer-to-peer technology to make copies
`
`of movies. In this case, the copyrighted video being copied would actually reside on the
`
`computer of the person who is distributing the video.
`
`ANSWER: Defendant lacks information sufficient to form a belief as to the facts alleged
`
`in Paragraph 23.
`
`24.
`
`In this case, the copyrighted videos that were being distributed on the gay-
`
`torrents.net website all contained the unique encryption code assigned to Defendant:
`
`“ebffvs”. On information and belief, Defendant distributed the aforesaid copyrighted
`
`videos on the gay-torrents.net.
`
`ANSWER: Defendant lacks information sufficient to form a belief as to the facts alleged
`
`related to encryption code, and denies all other allegations in Paragraph 24.
`
`25.
`
`All of the aforesaid copyrighted videos of the Plaintiff with Defendant’s
`
`unique encryption code were found on gay-torrents.net or a file storage site or both. See
`
`Group Exhibit “E”.
`
`ANSWER: Defendant lacks information sufficient to form a belief as to the facts alleged
`
`in Paragraph 25.
`
`
`
`8
`
`
`
`Case: 1:12-cv-01885 Document #: 26 Filed: 05/17/13 Page 9 of 20 PageID #:304
`
`
`
`26.
`
`On information and belief, Plaintiff’s copyrighted videos were
`
`downloaded hundreds of time by third parties. See Group Exhibit E.
`
`ANSWER: Defendant lacks information sufficient to form a belief as to the facts alleged
`
`in Paragraph 26.
`
`27.
`
`By “posting” and “distributing” with regard to Fileserve.com,
`
`bergfiles.com, rapidlibrary.com, sharaget.com, and filestube.com, gayking.org [sic],
`
`Plaintiff means that on information and belief, Defendant uploaded a copy of Plaintiff’s
`
`copyrighted videos to be distributed to third parties.
`
`ANSWER: Defendant denies the allegations contained in Paragraph 27.
`
`28.
`
`By “posting” and “distributing” with regard to gay-torrents.com, Plaintiff
`
`means that on information and belief, Defendant created a torrent or peer-to-peer file,
`
`uploaded the torrent file onto gay-torrents.com, and allows third parties to connect to
`
`Defendant’s computer using peer-to-peer technology. The copyrighted video resides on
`
`Defendant’s computer.
`
`ANSWER: Defendant denies the allegations contained in Paragraph 28.
`
`29.
`
`As a result of Defendant’ [sic] conduct, third parties were able to
`
`download the copyrighted videos, without permission of Flava Works.
`
`ANSWER: Defendant denies the allegations contained in Paragraph 29.
`
`
`
`9
`
`
`
`Case: 1:12-cv-01885 Document #: 26 Filed: 05/17/13 Page 10 of 20 PageID #:305
`
`
`
`30.
`
`Based on information and belief, Plaintiff’s copyrighted videos with
`
`Defendant’s unique identifying encryption code have been found on several other
`
`publicly accessible file sharing and file storage sites.
`
`ANSWER: Defendant lacks information sufficient to form a belief as to the facts alleged
`
`in Paragraph 30.
`
`COUNT I
`
`(Direct Copyright Infringement as to all Defendants – 17 U.S.C. § 501.)
`
`1-30. Plaintiff incorporates and re-alleges paragraphs 1-30 of this Complaint as
`
`paragraphs 1-30 of Count I.
`
`ANSWER: Defendant repeats and realleges the answers to Paragraphs 1-30 as if fully set
`
`forth herein.
`
`31. As previously stated, by “posting” and “distributing” with regard to gay-
`
`torrents.com, Plaintiff means that based on information and belief, Defendant created a
`
`torrent or peer to peer file, uploaded the torrent file onto gay-torrents.com, and allows
`
`third parties to connect to Defendant's computer using peer to peer technology.
`
`ANSWER: Defendant denies the allegations contained in Paragraph 31.
`
`32.
`
`Based on information and belief, the copyrighted video would reside on
`
`Defendant's computer using the torrent or peer to peer file technology.
`
`ANSWER: Defendant denies the allegations contained in Paragraph 32.
`
`
`
`10
`
`
`
`Case: 1:12-cv-01885 Document #: 26 Filed: 05/17/13 Page 11 of 20 PageID #:306
`
`
`
`33.
`
`Defendants' [sic] conduct interferes with Plaintiff’s exclusive right to
`
`reproduce, distribute and display the copyrighted works.
`
`ANSWER: Defendant denies the allegations contained in Paragraph 33.
`
`34.
`
`Defendants’ [sic] conduct constitutes copyright infringement that this
`
`Court may remedy under Sections 106 and 501 of the Copyright Act.
`
`ANSWER: Defendant denies the allegations contained in Paragraph 34.
`
`35.
`
`Defendants' [sic] aforesaid activities constitute infringement of Plaintiff's
`
`copyrights.
`
`ANSWER: Defendant denies the allegations in Paragraph 35.
`
`36.
`
`As a result of the injury suffered by Plaintiff’s business from Defendants’
`
`[sic] actions of direct copyright infringement, Plaintiff is entitled to recover actual and/or
`
`statutory damages, which shall be determined at trial, and costs of this action, including
`
`reasonable attorney’s fees, as well as injunctive relief to prevent future infringement.
`
`ANSWER: Defendant denies the allegations in Paragraph 36.
`
`COUNT II1
`
`(Contributory Copyright Infringement)
`
`1-30. Plaintiff incorporates and re-alleges paragraphs 30 of this Complaint as
`
`paragraphs 1-30 of Count II.
`
`
`1 The instant Answer repeats paragraph numbers 31-38 so as to correspond to the Third Amended
`Complaint.
`
`
`
`11
`
`
`
`Case: 1:12-cv-01885 Document #: 26 Filed: 05/17/13 Page 12 of 20 PageID #:307
`
`
`
`ANSWER: Defendant repeats and realleges the answers to Paragraphs 1-30 as if fully set
`
`forth herein.
`
`31.
`
`All copyrighted videos of the Plaintiff contained Defendant’s unique
`
`encryption code.
`
`ANSWER: Defendant lacks information sufficient to form a belief as to the allegations
`
`in Paragraph 31 of Count II.
`
`32.
`
`Based on information and belief, gay-torrents.net is a publicly accessible
`
`website. Defendant knew or should have known that he was making copyrighted videos
`
`available for downloading or distribution to third parties and members of the general
`
`public.
`
`ANSWER: Defendant denies the allegations in Paragraph 32 of Count II.
`
`33.
`
`Defendant knew or should have known that as a paid member of Plaintiff’s
`
`websites, Defendant had agreed to terms and conditions that prohibited him from making
`
`these copyrighted videos available for download or distribution by third parties:
`
`1.3. Copying or storing of any Content for any purpose other than your
`personal, noncommercial use as part of the Service is expressly prohibited
`without the prior written permission from Flava Works’ Rights and
`Permissions Department, or the copyright holder identified in the
`individual Content’s proprietary rights notices. For purposes of
`clarification, but not limitation, including any Content (in whole or in part)
`on your personal website, when it is accessible to any other person, is not
`a personal use and is not permitted. Exhibit “A”.
`
`ANSWER: Defendant denies the allegations in Paragraph 33 of Count II.
`
`
`
`12
`
`
`
`Case: 1:12-cv-01885 Document #: 26 Filed: 05/17/13 Page 13 of 20 PageID #:308
`
`
`
`34. Based on information and belief, gay-torrents.net is a file sharing site.
`
`Defendant knew or should have known that third parties used these sites to share, copy or
`
`distribute files.
`
`ANSWER: Defendant lacks information sufficient to form a belief as to the allegation
`
`that gay-torrents.net is a file-sharing site. Defendant denies all other allegations in
`
`Paragraph 34 of Count II.
`
`35.
`
`As previously stated, based on information and belief, Plaintiff’s
`
`copyrighted videos were downloaded thousands of time by third parties.
`
`ANSWER: Defendant lacks information sufficient to form a belief as to the allegations
`
`Paragraph 35 of Count II.
`
`36.
`
`Defendant materially contributed to the infringement when he distributed
`
`the copyrighted videos on gay-torrents.net, publicly accessible used by third parties to
`
`distribute or share videos.
`
`ANSWER: Defendant denies the allegations in Paragraph 36 of Count II.
`
`37.
`
`Defendant knew or should have known that third parties would infringe by
`
`copying or downloading the copyrighted videos when he breached Plaintiff’s terms and
`
`conditions by distributing a copyrighted video on a publicly accessible file sharing
`
`website.
`
`ANSWER: Defendant denies the allegations in Paragraph 37 of Count II.
`
`
`
`13
`
`
`
`Case: 1:12-cv-01885 Document #: 26 Filed: 05/17/13 Page 14 of 20 PageID #:309
`
`
`
`38.
`
`Based on information and belief, Plaintiff would not have uploaded a
`
`video to a publicly accessible website just to download the same video hundreds of times.
`
`ANSWER: Defendant lacks information sufficient to form a belief as to the allegations
`
`in Paragraph 38 of Count II.
`
`39.
`
`Based on information and belief, Defendants aided, abetted, allowed,
`
`encouraged and otherwise materially contributed to the infringement of Flava Works’
`
`Intellectual Property by copying, posting, and/or distributing Flava Works’ copyrighted
`
`videos without permission.
`
`ANSWER: Defendant denies the allegations in Paragraph 39 of Count II.
`
`40.
`
`Based on information and belief, Defendants had actual or constructive
`
`knowledge of or was willfully ignorant of the infringing activity and had the obligation
`
`and ability to control and stop the infringing activity, yet failed to do so.
`
`ANSWER: Defendant denies the allegations in Paragraph 40 of Count II.
`
`41.
`
`Based on information and belief, Defendant downloaded Plaintiff’s
`
`copyrighted videos and distributed the copyrighted videos on the Internet. Defendant had
`
`the ability to control and stop the infringing activity by ceasing in the activity. But
`
`Defendant chose not to.
`
`ANSWER: Defendant denies the allegations in Paragraph 41 of Count II.
`
`42.
`
`Defendants' conduct constitutes contributory copyright infringement that
`
`this Court may remedy under Sections 106 and 501 of the Copyright Act.
`
`
`
`14
`
`
`
`Case: 1:12-cv-01885 Document #: 26 Filed: 05/17/13 Page 15 of 20 PageID #:310
`
`
`
`ANSWER: Defendant denies the allegations in Paragraph 42 of Count II.
`
`43.
`
`As a result of the injury suffered by Plaintiff’s business from Defendants'
`
`actions of contributory copyright infringement, Plaintiff is entitled to recover actual
`
`and/or statutory damages, which shall be determined at trial, and costs of this action,
`
`including reasonable attorney’s fees, as well as injunctive relief to prevent future
`
`infringement.
`
`ANSWER: Defendant denies the allegations in Paragraph 43 of Count II.
`
`COUNTERCLAIM FOR DEFENDANT FRANK ROSSI
`
`STATEMENT OF FACTS
`
`
`
`Defendant Frank Rossi (“Defendant”), through his undersigned counsel, as and
`
`for his Counterclaims against Plaintiff Flava Works, Inc. (“Plaintiff”), alleges as follows:
`
`1.
`
`On or about July 21, 2007, Defendant signed up for a short-term trial
`
`membership for Plaintiff’s website, PapiCock.com (“PCcom”).
`
`2.
`
`Before the conclusion of the trial membership, Defendant attempted to
`
`cancel his membership through Plaintiff’s billing services company, CCBill.com, but he
`
`could not locate his membership in his CCBill.com account listing.
`
`3.
`
`Defendant contacted CCBill Customer Service in an attempt to cancel his
`
`PCcom membership.
`
`4.
`
`CCBill Customer Service suggested that Defendant contact Plaintiff
`
`directly to cancel his membership.
`
`
`
`15
`
`
`
`Case: 1:12-cv-01885 Document #: 26 Filed: 05/17/13 Page 16 of 20 PageID #:311
`
`
`
`5.
`
`Based on CCBill’s advice, and pursuant to the terms of the agreement
`
`entered into between Plaintiff and Defendant, Defendant contacted Plaintiff through
`
`Plaintiff’s support page on PCcom on or about July 22, 2007.
`
`6.
`
`Plaintiff responded to Defendant’s request for cancellation by stating,
`
`“Unfortunately, as it states on our website and in your subscription email receipt, the
`
`webmaster is unable to cancel your membership, only the billing company can cancel a
`
`membership.” See Exhibit 1.
`
`7.
`
`Plaintiff’s refusal to cancel Defendant’s account was in contravention of
`
`Plaintiff’s User/Subscriber Agreement, submitted with Plaintiff’s Complaint as Exhibit
`
`A. Specifically, section 10.1 read: “You may cancel your subscription in the Support
`
`section of this site. No fees will be refunded upon cancellation. You will retain access
`
`through the duration of your subscription term. You are responsible for all charges
`
`incurred up to the time the account is deactivated.” In refusing to uphold their end of
`
`User/Subscriber Agreement, Plaintiff was trapped into paying for an account he neither
`
`wanted nor needed.
`
`8.
`
`Defendant, an attorney, did not have the time to continue to pursue the
`
`issue as he was required to travel and conduct depositions for his job. In doing so, he lost
`
`track of the issue and did not notice the continued charges on his credit card as being
`
`attributable to PCcom since CCBill did not label the charges on Plaintiff’s credit card
`
`statements in a way that would have been self-evident.
`
`9.
`
`In the beginning of 2008, Defendant left his place of employment and
`
`decided to seek his Masters degree (LL.M.) at University of Miami School of Law
`
`
`
`16
`
`
`
`Case: 1:12-cv-01885 Document #: 26 Filed: 05/17/13 Page 17 of 20 PageID #:312
`
`
`
`starting in August 2008. Defendant graduated in May 2009 and returned to New York
`
`City in June 2009.
`
`10.
`
`Following graduation, Defendant worked at building his own legal
`
`practice as the New York City job market was not vibrant for lawyers. Funding this
`
`practice required Defendant to cut all unnecessary expenses by doing a self-audit of his
`
`accounts. In this audit in September 2010, Defendant realized he was still being charged
`
`monthly for an account through CCBill but could not ascertain through his CCBill
`
`account to which website the charges were attributable.
`
`11.
`
`Defendant contacted CCBill Customer Service to inquire about the
`
`mystery account. Without identifying the account, CCBill canceled the website billing
`
`on or about September 15, 2010. See Exhibit 2. Defendant did not realize the service he
`
`had been paying for was PCcom until he saw the exhibits attached to Plaintiff’s recent
`
`pleadings in this case in 2012.2
`
`12.
`
`Upon returning to New York City from his assistant teaching role in
`
`February 2011 in South Florida, Defendant returned to find a demand letter from Plaintiff
`
`demanding $3,500 for apparent piracy and/or copyright violations of Plaintiff’s videos.
`
`See Exhibit 3.
`
`13.
`
`Defendant immediately attempted to contact the signatory of the letter by
`
`telephone but instead was connected with Chief Executive Officer of Flava Works, Inc.,
`
`Phillip Bleicher.
`
`
`2 Defendant discovered that Plaintiff filed those exhibits showing his full username, password and other
`personal details, without redaction. As such, Defendant incorporates those exhibits by reference to prevent
`the further exploitation of that information that has been made possible by the public nature of these filings.
`
`
`
`17
`
`
`
`Case: 1:12-cv-01885 Document #: 26 Filed: 05/17/13 Page 18 of 20 PageID #:313
`
`
`
`14.
`
`Defendant asked for the details of the supposed violations in an attempt to
`
`understand the origin of Plaintiff’s demands being made. Mr. Bleicher refused to provide
`
`any details.
`
`15.
`
`Defendant offered to cooperate with Plaintiff in order to help ascertain
`
`whether some violation did indeed tie back to Defendant or Defendant’s prior PCcom
`
`account and the reasoning for that connection.
`
`16.
`
`This offer was not accepted by Mr. Bleicher.
`
`17.
`
`Believing he was being subjected to some form of scam, Defendant did
`
`not pursue the demand letter, or the two subsequent demand letters, further since he
`
`lacked any evidence or information to substantiate the broad claims made in the letters.
`
`18.
`
`Upon receiving Plaintiff’s email, Defendant contacted his Internet service
`
`provider, Time Warner Cable, to learn if Plaintiff performed or attempted to perform any
`
`level of inquiry concerning Defendant’s IP address and/or Internet services account with
`
`Time Warner Cable.
`
`19.
`
`Time Warner Cable informed Defendant of two important facts: a)
`
`Plaintiff had not contacted Time Warner Cable with or without a subpoena concerning
`
`his Internet services account; and b) Defendant’s Internet services account would have
`
`been flagged for improper activities if Time Warner Cable had detected that Defendant
`
`was conducting the file sharing that Plaintiff accused Defendant of performing.
`
`Defendant’s account had not been flagged as of that July 2011 telephone call with Time
`
`Warner Cable.
`
`20.
`
`Unfortunately, Defendant also learned during his discussions with Time
`
`Warner Cable that the records that would have been necessary to exonerate Defendant
`
`
`
`18
`
`
`
`Case: 1:12-cv-01885 Document #: 26 Filed: 05/17/13 Page 19 of 20 PageID #:314
`
`
`
`related to his Internet browsing and file transfer activities were retained for a maximum
`
`of six months by Time Warner Cable.
`
`21.
`
`Because Plaintiff purportedly located the videos at issue on a file sharing
`
`site in or around October 2010 (immediately after CCBill canceled Defendant’s account
`
`with PCcom) but waited until July 2011 to provide any details whatsoever concerning the
`
`purported violations despite Defendant’s request in February 2011, Plaintiff knowingly
`
`undermined Defendant’s ability to exonerate himself.
`
`COUNTERCLAIM I
`
`(Breach of Contract)
`
`Defendant repeats and re-alleges its allegations set forth in Paragraphs 1-
`
`22.
`
`25 above as if set forth herein.
`
`23.
`
`Plaintiff refused to abide by its agreement with Defendant when
`
`Defendant requested Plaintiff cancel his account prior to further billing in July 2007.
`
`24.
`
`Plaintiff then continued to allow billing of Defendant’s credit card by its
`
`billing company, CCBill, until Defendant recognized the issue again in September 2010.
`
`25.
`
`As a result, Defendant incurred 38 months of monthly subscription fees,
`
`totaling approximately $500.
`
`26.
`
`In addition, Plaintiff is seeking damages in the present case that are
`
`directly related to Plaintiff’s refusal to cancel Defendant’s account, since Plaintiff’s
`
`ability to allege that Defendant’s “unique identifier” was attached to videos downloaded
`
`after July, 2007 is a direct and proximate result of Plaintiff’s breach of its Agreement
`
`with Defendant.
`
`
`
`19
`
`
`
`Case: 1:12-cv-01885 Document #: 26 Filed: 05/17/13 Page 20 of 20 PageID #:315
`
`
`
`27.
`
`As such, Defendant is entitled to recover from Plaintiff the damages
`
`caused to Defendant by Plaintiff’s breach of contract, including legal fees and costs
`
`associated with the present matter.
`
`WHEREFORE, Defendant prays this Honorable Court for the following relief:
`
`For dismissal of the Plaintiff’s action with prejudice;
`
`For an order that Plaintiff’s shall take no relief from their complaint herein;
`
`For an award of damages related to Defendant’s counterclaim;
`
`For an award of Defendant's costs and attorneys' fees herein incurred; and
`
`For such further and other relief and the Court deems just and proper.
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`
`
`Respectfully submitted,
`
`Defendant Frank Rossi
`
`By: /s/ Daliah Saper
`Daliah Saper,
`Saper Law Offices, LLC
`505 N. LaSalle Suite 350
`Chicago, Illinois 60654
`(312) 527-4100
`IL ARDC. No.: 6283932
`dsaper@saperlaw.com
`
`Dated: May 17, 2013
`
`
`
`
`
`
`
`
`
`
`20
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
