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these new theories and ac; set forth below.1. Plaintiffs HaveRegistered By

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To: 12128057920MAR-19-2011 14:52 From:

Surn-: ~ O O 601 L ~ J ( I N C T O N AVllNlnNEw YOII.:K. NY IOOn41>11TliL: 1 I l ~ I I ( ) 741l0 .U 2 1 2 9 8 0 7 ' ~ 9 "" WlW, rkrnc, COin

March 2'3',e ne,w theories and evidence should be strickenbecause "argumentls] for the tirst time m ' ; ~ ' T e p l y brief ... aTe not properly before the8208 J 787 IA T j, A N 'I" ... R (\ l) TON l A N t 1 ! t . 1 ! ~ . M j N N B A " ' ( ) l l : " ; N A r l IS

Andersen Yt'l"ote and

Case 1:09-cv-10155-SAS Document 192 Filed 03/23/11 Page 1 of 3

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that it is for "[nJew andBut the registralion docpart of, BusyBox v.0.6attached to their Replywhieh 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~ 2 0 8 1 1 8 7 . 1

MAR-19-2011 14:53 From:

Honorable Shira A. SellePage 2

Court." Cow;ins v. Pc(S.D.N.Y. December 22,Should the Coursorely lacking. The cophe wrote. lnstead. Bra

Conservancy"), suddenlprogram. (DkL No. 18his employment with Liof code. (Dkt. No.3"maintainer," (Okt. No.their code to him. 'IncnBusy Box. "Committin90:12).

Mr. Kuhn alsoAnderscn, there was nPIuintiffs speculate wi t(Dkt. No. 188 at 2.)equated with authorshiapproach to documentinto track authorship wasopportunity to annotateexplanatory commentspotentially, some degecdcmonstrates that chang190, Ex. 4 at 242: 12-2establish authorship. T

Plainliffs' Replyinjunction for lnfringcmat 6.) But this Court dwork. SimplexGrinnel(S.D.N.V. 2009); lindCopyright Act may enjo

To: 12128057920

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09 Civ. 1190, 2010 U.S. Dist. LEXIS 136139, at *8 n.3

l 3-4.)6.)

i

tes l1lal,

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might choose

. :25.)

wish to consider Plaintilh' belated proof, it will be evident that it isghl owner, Mr. Andersen, is conspicuously silent on what lines of codey Kuhn, an officer of plaintiff Software Freedom Conservancy ("theclaims that he iuspccled logs documenting changes to the BtlsyBox

Based on this assessment, Mr. Kuhn states that, after leaving0, Mr. Andersen "added or was the last person to edit" ovcr 8000 lines

That is not surprising, as Mr. Andersen was the DusyBox0, Ex. 4 at 76:15-22) and acconlingly the other authors had to submits the "maintainer," he would "commit" the code authored by others locode, 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 bey ML Andersen. Mr. Andersen' s tcstimony establishes a haphazardauthorship in HusyBox. His use of annotation and editorial commentsno way systematic. CDke No. 190, Ex. 4 at 241 ("1 am also given anat 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

8/6/2019 Best Buy Letter to Court Regarding Injunction

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MAR-19-2011 14:53 From:

lIonorable Shira A SehPage 3of consumer electronics.products that have alremotion, which must be l'

This new theorydispute that Best Buy habrice Plainli rrs' ReplyBox source code in comaking an offer for sodiscontinued. (Dkt. No.with the terms of the opPlaintiffs resort t."infringing" activities, (

to allow a license to becopyright owner. (Dkt.in (he license. To thedistribution 0 r a licensecode or executable Iono f r ~ r for the correspondi

When interpretiprovisions or terms "in ithe parties as IDruuftstl:2009) (quotalion omittanyone to copy, distribmade aware of their aPreamble.) The licenseor modify licensed soft.(rd.)

Lastly, we alsopending motiun, and ldemands for pubhcalioBusyBox. which have n

cc: All Counsel ofRec

1 1 2 0 ~ 1787.1

To: 12128057920

dlin

(Dkt. No. 188 al 7.) l ? ~ l t , their focus on obsolescence of the accusedy been sold to consumers is irrelevant to the preliminary injunctionard 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 complyingIsource 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.2rrevocably terminaled, barring express reinstalcmenl of rights by thes. 164 at 8; 188 at 5, 9.) There is no irrevocable tcrminalion provisionntrary, the GPL v.2 is unambiguous regarding the requirements forwork-any licensed program may be copied or distributed in o ~ j e c t i.e. on a Hlu-ray player) so long as it is accompanied with a writtcD

source code. (Dkt , N ~ , ~ } ~ 6 ~ , Ex. 2 at 3.) Best Buy is doing that.an unambiguous agreement., COUIts should nol (.;onsider individuallation 'but in the light or the obligation as a whole and the intention ofthereby. ", 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 alsolity to oblain corresponding source code. (Dkt. No. 165, Ex. 2 atintended to prevent anyone from denying lhe rights to copy, distributere, so long as anyone exercising those rlghls meets their obligations.

le that Plnintiffs' do not di:;pute that they took luu long to bring thet any delay in fi ling the motion was caused by their unwarrantedI of proprietary code, or for other open source code unreJaled toing to do with tius casco

Respeclfully submitted,, MILLER & CIRESI L.L.P.

U(bye-mail)

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