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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:22-CV-23699-RKA

DAVID GORDON OPPENHEIMER,

Plaintiff,

v.

PANDA IDX, LLC,

Defendant.

__________________________________/

DEFENDANT’S ANSWER AND AFFIRMATIVE

DEFENSES TO PLAINTIFF’S COMPLAINT

Defendant Panda IDX, LLC (“Panda”), by and through the undersigned counsel, 

respectfully files this Answer and Affirmative Defenses to Plaintiff’s Complaint, and states as 

follows:

ANSWER

SUMMARY OF THE ACTION

1. Admitted.

2. Without sufficient knowledge, and therefore denied.

3. Admitted.

4. Denied as written.

JURISDICTION AND VENUE

5. Admitted for jurisdictional purposes only.

6. Admitted for jurisdictional purposes only.

7. Admitted for jurisdictional purposes only.

8. Admitted for jurisdictional purposes only.

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DEFENDANT

9. Admitted.

THE COPYRIGHTED WORK AT ISSUE

10. Without sufficient knowledge.

11. Without sufficient knowledge.

12. Without sufficient knowledge.

13. Denied as written.

14. Without sufficient knowledge.

INFRINGEMENT BY DEFENDANT

15. Admitted.

16. Denied as written.

17. Without sufficient knowledge.

18. Denied as written.

19. Denied as written.

20. Denied as written.

21. Denied as written.

22. Admitted.

23. Denied as written.

24. Admitted.

25. Admitted as to the notification, otherwise denied.

COUNT I

COPYRIGHT INFRINGEMENT

26. Panda incorporates and realleges its responses to paragraphs 1 through 25, as 

though fully stated herein.

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27. Without sufficient knowledge.

28. Without sufficient knowledge.

29. Denied as written.

30. Denied as written.

31. Denied as written.

32. Denied as written.

33. Denied as written.

COUNT II

REMOVAL OF COPYRIGHT MANAGEMENT INFORMATION

34. Panda incorporates and realleges its responses to paragraphs 1 through 25, as 

though fully stated herein.

35. Admitted that the image on page 11 of Plaintiff’s Complaint speaks for itself.

36. Denied as written.

37. Denied as written.

38. Denied as written.

39. Denied as written.

40. Denied as written.

41. Denied as written.

AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

INNOCENT INFRINGEMENT

The Digital Millennium Copyright Act provides in pertinent part that,

In a case where the infringer sustains the burden of proving and the court finds, that 

such infringer was not aware and had no reason to believe that his or her acts 

constituted an infringement of copyright, the court in its discretion may reduce the 

award of statutory damages to a sum of not less than $200.

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17 U.S.C.S. § 504(c)(2). “[I]nnocent infringement . . . bears [directly] on the issue of damages.” 

New Line Cinema Corp. v. Russ Berrie & Co., 161 F. Supp. 2d 293, 302 (S.D.N.Y. 2001).

In the present case, Defendant hired a third-party freelancer to help select the photos to add 

to its website. Defendant explicitly gave the freelancer access to a stock photo account to select 

images for the website. However, without consulting or receiving the authorization of Defendant, 

the freelancer uploaded an image outside of the stock photo system, which was the photo at issue 

in this matter. The image was fit to the standard aspect ratio for the display of Defendant’s website, 

which resulted in only a portion of the image being shown. At no time was Defendant or either of 

its Title Managers aware or should have been aware of the potential alleged infringement of 

Plaintiff’s copyright. Therefore, this court may in its discretion reduce any award of statutory 

damages to Plaintiff to $200.00.

Dated: February 23, 2023

Respectfully submitted,

Eduardo A. Maura, Esq.

Attorney for Defendant

Ayala Law, P.A.

2490 Coral Way, Ste 401

Miami, FL 33145

305-570-2208 Phone

eduardo@ayalalawpa.com

By: /s/ Eduardo A. Maura

Eduardo A. Maura

Florida Bar No. 91303

CERTIFICATE OF SERVICE

I hereby certify that on February 23, 2023, I electronically filed the foregoing document with the 

Clerk of the Court using the CM/ECF system, which will serve a copy of it by Notice of Electronic 

Mail to all counsel of record.

By: /s/Eduardo A. Maura

Eduardo A. Maura

Florida Bar No. 91303

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