these new theories and ac; set forth below.

1. Plaintiffs Have
Registered By
a
To: 12128057920
MAR-19-2011 14:52 From:
Surn-:
601 AVllNln
NEw YOII.:K. NY IOOn41>11
TliL: 741l0 .U
"" WlW, rkrnc, COin
March 2'3',<1011
Honorable Shira A.
United States District
Southern District of N
Daniel Patrick Mo lU,Ua.ltlll
United Slates Courtho
500 Pearl Street, Room
New York, Ncw YOTk I
Rc: Software

Dear Judge Scheindlin:
We represent Buy Co., Inc. ("Rest Buy") in the referenced matter, and write
concerning P1aintiffs' for a Preliminary Injunction. Last Monday, Plaintiffs filed a Reply
in Support of their for a Tnjunction ("Reply") and a supporting Declaration
of Bradley Kuhn .l\..1.11ll11Iul:;;Llaration"). Thc:;e lwo pleadings inject new issues that were never
raised in their MOlion. one thing, the plaipti,ffs .did not even attempt to compare PJaintiff
Erik Anderson's materiaJ to the devices until the Reply. (Dkt. No. 188 at 1
6). Plaintiffs ulso raise argLllllellt un irreparable harm. (ld. at 7,) We have not had a fair
opportunity to respond this new matter. Accordingly, we request that 1he Reply and Kuhn
Declaration be stricken, . in the alternative, that the Court consider Best Buy's responses to
Infringement Of" RusyBox Code Written And
broad brush approach In requcsting a prdiminary injunction,
seeking to enjoin Bcst from "any furlher copying, distribution or use of Busy Box." (Dk ..
No. 164 at 18.) they made broad reference to Me Andersen's in
BusyBox v. 0.60.3 3), thcir Motion did not specifically identify what parts of the
registered copyright Me dcrson allegedly authored, nor did they compare his contribuLions in
the BusyBox code to devices. (Dkt Nos. 164-166.) Only after Best Buy informed
this Court of the multi ownership issues surrounding BusyBo)(, and of defective
intnngement proof (Dkt o. 178 at 10-14), have Plaintiffs even attempted to delineate what Mr.
at the Copyright Office, or to compare Mr. Andersen's registered
at,,;Il.. products. Thc!.>e ne,w theories and evidence should be stricken
because "argumentls] for the tirst time brief ... aTe not properly before the
8208 J 787 I
A T j, A N 'I" ... R (\ l) TON l
IS
Andersen Yt'l"ote and
Case 1:09-cv-10155-SAS Document 192 Filed 03/23/11 Page 1 of 3
that it is for "[nJew and
But the registralion doc
part of, BusyBox v.0.6
attached to their Reply
whieh code Mr. Anders
'.
11. Plaintiffs CaDn Demonstrate Irrcparablc Harm To Justify An Injunction.
PlaintlfTs also su est, for the fust time-and again relying strictly on aUorney argument
and no evidence--- that nature of their harm is somehow rc1ah:d to alleged rapid obsolescence

MAR-19-2011 14:53 From:
Honorable Shira A. Selle
Page 2
Court." Cow;ins v. Pc
(S.D.N.Y. December 22,
Should the Cour
sorely lacking. The cop
he wrote. lnstead. Bra
Conservancy"), suddenl
program. (DkL No. 18
his employment with Li
of code. (Dkt. No.3
"maintainer," (Okt. No.
their code to him. 'Incn
Busy Box. "Committin
90:12).
Mr. Kuhn also
Anderscn, there was n
PI uintiffs speculate wi t
(Dkt. No. 188 at 2.)
equated with authorshi
approach to documentin
to track authorship was
opportunity to annotate
explanatory comments
potentially, some degec
dcmonstrates that chang
190, Ex. 4 at 242: 12-2
establish authorship. T
Plainliffs' Reply
injunction for lnfringcm
at 6.) But this Court d
work. SimplexGrinnel
(S.D.N.V. 2009); lind
Copyright Act may enjo
To: 12128057920
dIm
09 Civ. 1190, 2010 U.S. Dist. LEXIS 136139, at *8 n.3
l 3-4.)
6.)
i
tes l1lal,
l
might choose
. :25.)
wish to consider Plaintilh' belated proof, it will be evident that it is
ghl owner, Mr. Andersen, is conspicuously silent on what lines of code
y Kuhn, an officer of plaintiff Software Freedom Conservancy ("the
claims that he iuspccled logs documenting changes to the BtlsyBox
Based on this assessment, Mr. Kuhn states that, after leaving
0, Mr. Andersen "added or was the last person to edit" ovcr 8000 lines
That is not surprising, as Mr. Andersen was the DusyBox
0, Ex. 4 at 76:15-22) and acconlingly the other authors had to submit
s the "maintainer," he would "commit" the code authored by others lo
code, and "authoring" code, are two differcnt things. (lei. at 88:13
ror over 5000 Jines of code last "added or edited" by Mr.
eeoed of attribution to another developer. (ld. at 7.) Fn)m this.
ut basis that Mr. Andersen "wrote [this code] cntnely by himself."
the absence of proper attribution to another author l:an hardly be
y ML Andersen. Mr. Andersen' s tcstimony establishes a haphazard
authorship in HusyBox. His use of annotation and editorial comments
no way systematic. CDke No. 190, Ex. 4 at 241 ("1 am also given an
at change (aulhored by someone else], and r can then add whatever
. . . it contains both the software modi flcation and,
of editorial comment.") And a document that predates the litigation
to the BtL<;;yBox program were "not very carefully tracked." (Dict. No.
Clearly, evidence relating to "commits" and "edits" dOeS not
Kulm Declaration does not prove
Iso argues, for the fust time, that Mr. Andersen is entitled to pursue an
t of his unregistered contributions in BusyBox v. 1.2.1. (Dkt. No.1 88
s not have jurisdiction over claims of infringement in an unregistered
LP v. lnte
6
"Tated S'ys. & Power, inc., 642 f. Supp. 2d 206, 213
e 17 U.S.c. 41 L And only a court with jurisdiction under the
the use of a copyrighted work. 17 TJ.S.C. 502.
e that Mr. Anderson's registration is not misleading because it recites
vised computer source code by Erik (Dkt. No. 188 at 4.)
not make clear to the public whethcr Andersen wrote all, or only
Nor docs the deposit copy of the code (excerpted by Plaintiffs and
ef as Exhibit C to disclose other authors of BusyBox v.0.60.3) indicate
authored.
Case 1:09-cv-10155-SAS Document 192 Filed 03/23/11 Page 2 of 3
MAR-19-2011 14:53 From:
lIonorable Shira A Seh
Page 3
of consumer electronics.
products that have alre
motion, which must be l'
This new theory
dispute that Best Buy ha
brice Plainli rrs' Reply
Box source code in co
making an offer for so
discontinued. (Dkt. No.
with the terms of the op
Plaintiffs resort t.
"infringing" activities, (
to allow a license to be
copyright owner. (Dkt.
in (he license. To the
distribution 0 r a license
code or executable Ion
for the correspondi
When interpreti
provisions or terms "in i
the parties as IDruuftstl:
2009) (quotalion omitt
anyone to copy, distrib
made aware of their a
Preamble.) The license
or modify licensed soft.
(rd.)
Lastly, we also
pending motiun, and l
demands for pubhcalio
BusyBox. which have n
cc: All Counsel ofRec
1787.1
To: 12128057920
dlin
(Dkt. No. 188 al 7.) their focus on obsolescence of the accused
y been sold to consumers is irrelevant to the preliminary injunction
ard looking.
simply a distraction from the fact that Plaintifls have not, and cannot,
liminated the harm about which Plaintiffs complained in their opening
. es not dispute that Best Buy is now making a written offer for Busy
ction with the saJe of its current, Insignia BIu-ray players, and is also
e code tbr the two Insignia Rlu-ray players that were most recently
.78 at 8 and n.8; Dkt. No. 181 at 17.) Thus, Best Buy is complying
I source liccnse (GPL v.2) !l1ld there IS no threaL of future harm.
characterizing Best Buy's ongoing sales of Insignia Blu-ray players as
. No. 188 al 9). Citing no authority, Plaintiffs interpret the GPL v.2
rrevocably terminaled, barring express reinstalcmenl of rights by the
s. 164 at 8; 188 at 5, 9.) There is no irrevocable tcrminalion provision
ntrary, the GPL v.2 is unambiguous regarding the requirements for
work-any licensed program may be copied or distributed in
i.e. on a Hlu-ray player) so long as it is accompanied with a writtcD
source code. (Dkt Ex. 2 at 3.) Best Buy is doing that.
an unambiguous agreement., COUIts should nol (.;onsider individual
lation 'but in the light or the obligation as a whole and the intention of
thereby. ", JA Apparel Corp. v, Abboz/d, 568 f.3d 390, 397 (2d Cir.
J. The GPLv.2 is designed to encourage and protect the rights of
I and/or modify licensed software, so long as the recipients arc also
lity to oblain corresponding source code. (Dkt. No. 165, Ex. 2 at
intended to prevent anyone from denying lhe rights to copy, distribute
re, so long as anyone exercising those rlghls meets their obligations.
le that Plnintiffs' do not di:;pute that they took luu long to bring the
t any delay in fi ling the motion was caused by their unwarranted
I of proprietary code, or for other open source code unreJaled to
ing to do with tius casco
Respeclfully submitted,
, MILLER & CIRESI L.L.P.
U(bye-mail)
Case 1:09-cv-10155-SAS Document 192 Filed 03/23/11 Page 3 of 3