From: tom.klemesrud@support.com Organization: L.A. Valley College Public BBS (818)985-7150 Date: Fri, 14 Apr 95 22:14:37 -0700 Subject: My answer to scn suit Daniel A. Leipold, Esq. - S.B. #77159 Robert F. Donohue, Esq. - S.B. #110505 Paul G. Szumiak, Esq. - S.B. #109982 Monique D. Grandaw, Esq. - S.B. #162451 HAGENBAUGH & MURPHY Suite 8200 701 South Parker Street Orange, CA 92668 Telephone: (714) 835-5406 Attorneys for Defendant, TOM KLEMESRUD, an individual; dba CLEARWOOD DATA SERVICES UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA RELIGIOUS TECHNOLOGY CENTER, a California non-profit corporation; and BRIDGE PUBLICATIONS, INC., a California non-profit corporation, Plaintiffs, v. NETCOM ON-LINE COMMUNICATION SERVICES, INC., a Delaware corp.; DENNIS ERLICH, an individual; and TOM KLEMESRUD, an individual; dba CLEARWOOD DATA SERVICES, Defendants. No. C-95-20091 ANSWER OF TOM KLEMESRUD, AN INDIVIDUAL, DBA CLEARWOOD DATA SERVICES TO VERIFIED FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES FOR COPYRIGHT INFRINGEMENT AND TRADE SECRETS MISAPPROPRIATION (Cal. Civil Code 3426.1) ___________________________ Defendant, TOM KLEMESRUD, an individual dba CLEARWOOD DATA SERVICES, responds to the plaintiff's verified first amended complaint as follows: 1. Responding to paragraph 1 of the complaint, defendant admits that he is a subscriber to Netcom Services and through a bulletin board service which he maintains, acts as a link between Erlich and Netcom. Answering the remainder of paragraph 1 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every remaining allegation contained therein. 2. Responding to paragraph 2 of the complaint, defendant admits that the Court has subject matter jurisdiction of this action and has pendent jurisdiction over the state claims asserted herein. 3. Responding to paragraph 3 of the complaint, defendant admits that one of the defendants is deemed to reside in this judicial district. Answering the remainder of paragraph 3 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every remaining allegation contained therein. 4. Responding to paragraph 4 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 5. Responding to paragraph 5 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 6. Responding to paragraph 6 of the complaint, defendant is informed and belives and on that basis, admits that defendant Netcom has its principal place of business in the City of San Jose, County of Santa Clara, State of California. Answering the remainder of paragraph 6 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every remaining allegation contained therein. 7. Responding to paragraph 7 of the complaint, defendant is informed and believes that defendant Erlich is a resident of the City of Glendale, County of Los Angeles, State of California and on that basis admits the allegations of paragraph 7. 8. Responding to paragraph 8, defendant admits the allegations contained therein. 9. Responding to paragraph 9 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 10. Responding to paragraph 10 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 11. Responding to paragraph 11 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations in said paragraph, and on that basis denies each and every allegation contained therein. 12. Responding to paragraph 12 of the complaint, defendant is informed and believes and thereon admits that a writ of seizure was issued by the court and executed at the premises of defendant Erlich. Answering the remainder of paragraph 12, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every remaining allegation contained therein. 13. Responding to paragraph 13 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 14. Responding to paragraph 14 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 15. Responding to paragraph 15 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 16. Responding to paragraph 16 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 17. Responding to paragraph 17 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 18. Responding to paragraph 18 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 19. Responding to paragraph 19 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 20. Responding to paragraph 20 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 21. Responding to paragraph 21 of the complaint, this answering defendant denies that he has infringed plaintiffs' copyrights by any means. Answering the remainder of paragraph 21 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every remaining allegation contained therein. 22. Responding to paragraph 22 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 23. Responding to paragraph 23 of the complaint, defendant is informed and believes and on that basis admits the allegations of paragraph 23 of the complaint. 24. Responding to paragraph 24 of the complaint, defendant is informed and believes, and on that basis admits the allegations of paragraph 24 of the complaint. 25. Responding to paragraph 25 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 26. Responding to paragraph 26 of the complaint, this answering defendant admits that he operates what is known as a Bulletin Board System and that the Bulletin Board System he operates provides access to the Internet through Netcom. Answering the remainder of paragraph 26, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph and on that basis denies each and every remaining allegation contained therein. 27. Responding to paragraph 27 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation therein. 28. Responding to paragraph 28 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation therein. 29. Responding to paragraph 29 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 30. Responding to paragraph 30 of the complaint, defendant is informed and believes, and on that basis admits the allegations contained therein. 31. Responding to paragraph 31 of the complaint, defendant Klemesrud denies that he is engaged in the business of operating a BBS for subscribers, for fees. Answering the remainder of paragraph 31 of the complaint, defendant admits the remainder of the allegations contained in said paragraph. 32. Responding to paragraph 32 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 33. Responding to paragraph 33 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 34. Responding to paragraph 34 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 35. Responding to paragraph 35 of the complaint, defendant denies he has reproduced and published work so as to infringe or contributorily infringe plaintiffs' copyrights. Answering the remainder of paragraph 35, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every remaining allegation contained therein. 36. Responding to paragraph 36 of the complaint, this answering defendant admits that he has been informed that his actions constitute copyright infringement and trade secret misappropriation and that demand has been made that he cease and desist from further infringement, misappropriation and contributory infringement. Answering the remainder of the allegations of paragraph 36, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every remaining allegation contained therein. 37. Responding to paragraph 37 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 38. Responding to paragraph 38 of the complaint, this answering defendant denies each and every allegation contained therein. 39. Responding to paragraph 39 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 40. Responding to paragraph 40 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 41. Responding to paragraph 41 of the complaint, this answering defendant denies each and every allegation contained therein. 42. Responding to paragraph 42 of the complaint, this answering defendant incorporates by reference the responses to the allegations contained in paragraphs 2 through 31 as set forth herein. 43. Responding to paragraph 43 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 44. Responding to paragraph 44 of the complaint, defendant denies each and every allegation contained therein. 45. Responding to paragraph 45 of the complaint, defendant denies each and every allegation contained therein. 46. Responding to paragraph 46 of the complaint, defendant denies each and every allegation contained therein. 47. Responding to paragraph 47 of the complaint, defendant denies each and every allegation contained therein. 48. Responding to paragraph 48 of the complaint, defendant denies each and every allegation contained therein. 49. Responding to paragraph 49 of the complaint, this answering defendant incorporates by reference the response to the allegations contained in paragraphs 2 through 31 above as though set forth fully herein. 50. Responding to paragraph 50 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 51. Responding to paragraph 51 of the complaint, this answering defendant denies each and every allegation contained therein. 52. Responding to paragraph 52 of the complaint, this answering defendant denies each and every allegation contained therein. 53. Responding to paragraph 53 of the complaint, this answering defendant denies each and every allegation contained therein. 54. Responding to paragraph 54 of the complaint, this answering defendant denies each and every allegation contained therein. 55. Responding to paragraph 55 of the complaint, this answering defendant denies each and every allegation contained therein. 56. Responding to paragraph 56 of the complaint, defendant incorporates by reference the response to the allegations contained in paragraphs 2 through 31 above as though set forth fully herein. 57. Responding to paragraph 57 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 58. Responding to paragraph 58 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 59. Responding to paragraph 59 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 60. Responding to paragraph 60 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 61. Responding to paragraph 61 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 62. Responding to paragraph 62 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 63. Responding to paragraph 63 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 64. Responding to paragraph 64 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 65. Responding to paragraph 65 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 66. Responding to paragraph 66 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 67. Responding to paragraph 67 of the complaint, defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. FOR A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 1. The purported claims set forth in the complaint fail to state a claim upon which relief can be granted. FOR A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 2. The complaint is barred by the applicable statutes of limitations. FOR A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 3. Plaintiffs' claims, and each of them, are barred by the doctrine of laches. FOR A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 4. This answering defendant is informed and believes, and upon which basis alleges that plaintiffs are barred from obtaining any relief sought in the complaint by reason of their own unclean hands. FOR A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 5. Plaintiffs have failed to join an indispensable party. FOR A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 6. This answering defendant is informed and believes, and upon such basis alleges that plaintiffs' claims, and each of them, are barred by the doctrine of estoppel. FOR A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 7. This answering defendant is informed and believes, and upon such basis alleges that plaintiffs have abandoned any copyright ownership they may have once had. FOR AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 8. This answering defendant is informed and believes and upon such basis alleges that the alleged copyrights for the materials allegedly infringed upon, as referenced in the verified complaint, were not registered for copyright as alleged therein. FOR A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 9. This answering defendant is informed and believes, and upon such basis alleges that plaintiffs' claims are barred in their entirety by the doctrine of fair use. FOR A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 10. This answering defendant is informed and believes, and upon that basis alleges that plaintiffs herein are not the copyright owners of the alleged copyright as alleged in the complaint, and the alleged copyright materials are in the public domain. FOR AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 11. This answering defendant is informed and believes, and upon that basis alleges that plaintiffs' claims in their entirety are barred due to the passive carrier exemption of the Copyright Act of 1976, 17 USCS 111(a)(3). FOR A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 12. This answering defendant is informed and believes, and upon that basis alleges that the plaintiffs herein are estopped from claiming damages and/or right to relief as alleged in the complaint, or otherwise, because of their own conduct, acts and omissions. FOR A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 13. This answering defendant is informed and believes, and upon that basis alleges that plaintiffs' claims are barred in whole or in part as a result of their failure to mitigate their damages, if any. FOR A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 14. This answering defendant is informed and believes, and upon that basis alleges that plaintiffs herein have diluted and/or abandoned any copyright interest in the alleged materials, if any, by not enforcing same and thereby relinquishing any such rights. FOR A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 15. This answering defendant is informed and believes, and upon that basis alleges that plaintiffs' claims are barred by the doctrines of res judicata and/or collateral estoppel. FOR A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 16. This answering defendant is informed and believes, and upon that basis alleges that although this answering defendant denies any and all liability and responsibility, plaintiffs' alleged damages, if any, were proximately caused and/or contributed to by the negligence, wrongdoing and/or malfeasance of other third parties, served or unserved. FOR A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 17. This answering defendant is informed and believes, and upon that basis alleges that plaintiffs' pendent state claim is barred by Article 1, 2 of the California Constitution. FOR AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 18. This answering defendant is informed and believes and upon that basis alleges that plaintiffs' pendent state claim is barred by Article 1, 3 of the California Constitution. FOR A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 19. This answering defendant is informed and believes, and upon that basis alleges that plaintiffs' pendent state claim is barred by Article 1, 4 of the California Constitution. FOR A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 20. This answering defendant is informed and believes and upon that basis alleges that plaintiffs' claims are barred by the provisions of the First Amendment of the United States Constitution. FOR A TWENTY-FIRST, SEPARATE, AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 21. This answering defendant is informed and believes and upon that basis alleges that plaintiffs' claims are barred by the provisions of the Fourth Amendment of the United States Constitution. FOR A TWENTY-SECOND, SEPARATE, AND AFFIRMATIVE DEFENSE TO ALL PURPORTED CLAIMS: 22. Defendant is informed and believes and thereon alleges that plaintiffs' claims are barred pursuant to the provisions of 42 USC 2000bb, et seq. WHEREFORE, this answering defendant prays as follows: 1. That plaintiffs take nothing by reason of their complaint; that judgment be rendered in favor of defendant; 2. That defendant be awarded his costs of suit incurred in defense of this action; 3. For such other and further relief as the Court deems proper. Dated: April 14, 1995 HAGENBAUGH & MURPHY By____________________________ DANIEL A. LEIPOLD Attorneys for Defendant, TOM KLEMESRUD, an individual; dba CLEARWOOD DATA SERVICES