SUN是否又在欺诈 « 多维博客

2009年01月16日 5:32 下午

今天看到一封电子邮件，有一位朱博士说有“汉奸”在163网站攻击岳东晓，“是否是对方公司雇的写手？请密切注意！小心！！”经查，网上有一篇“岳东晓案不方便说出的细节”的文章（下称“不方便”）。看了之后结论是，这是对方公司雇的写手写的几率超过50%。

此文先是贬低岳东晓的律师，然后写的内容与法庭资料上的完全不符，但与SUN的狡辩接近，即使是有心人也不至于有这么好的想象力。联系到SUN的律师中有华人，不能不令人生疑。法官虽然维护SUN的利益，但对SUN的律师并不见得爱怜。有次法官就判决SUN的律师“Mischaracterize”(歪曲)法庭命令。现在“不方便”的MISCHARACTERIZE的手法与SUN律师的做法很相似。SUN的律师甚至把贺梅案的文件、和岳博士写的“朝鲜战争常见问题解答”都拿去作为证据，其手段可见一斑。

“不方便”的第一个MISCHARACTERIZE就是说岳博士作为“平民”试图代表NETBULA公司。这是SUN律师在法庭上的一个MISCHARACTERIZE，但法庭并没有接受。程序上，岳博士比SUN的律师清楚。比如在律师费问题上，岳博士指出SUN的律师违反规则，SUN的律师还不知道哪条规则，后来向法庭承认是他们的OVERSIGHT（疏忽）。在口头辩论时，法官提出一个最高法院案例，SUN的律师说没听说过，而岳博士知道。而且法庭的规则也很清楚，公司必须由律师代表。所以说岳博士想代表公司完全是无稽之谈。因为那是程序上不可能的事。

就连法官也承认岳博士是在代表他个人的版权。相关的听证记录及论述在www.American-Justice.org上都有。SUN的律师自己写到：“岳博士和公司各自拥有哪一部分源代码是一个问题。”因为软件的很大部分是在公司成立前写的，版权属于个人。而且，岳博士起诉的版权证书上清清楚楚地写着版权所有人是“DONGXIAO YUE”。按版权法，只有版权所有人才能起诉。岳博士是根据个人拥有的版权起诉。版权证书上诉网站上有。

“不方便”的其他MISCHARACTERIZE就更粗糙了。比如他写道，岳博士指责JENKINS报复是因为“临走前接过此案，而且快速判决后走人”。这显然与法庭文件不合。早在判决前几个月，岳博士就写信给JENKINS说他有报复嫌疑。根据是其律师在SYMANTEC盗版案中听一个副法官说的，说不知为何岳博士得罪了法官，内定要判他输。后来法官判SYMANTEC获胜，岳博士发现真是如此。至于岳博士控告法官报复之后，法官拒绝退出、强行接过案子,再判岳博士败诉，那是另一回事。

另外，“不方便”说法庭已经裁决SUN的恶意欺诈不成立。这明显是在刻意替SUN抹粉。法庭根本就没有做出这样的判决。目前SUN欺诈的部分官司还在继续取证之中。

至于JENKINS如何判SUN没有侵权的，理由是从纯粹法律角度，结论是：“购买一个拷贝的软件但复制多个不属侵权。”按这个说法，谁都可以盗版了。对这个结论的分析，www.American-Justice.org上有。基本上，法官是混淆产权与合同权的概念，基本废掉美国版权法。至于接下来的律师费判决，更是离谱。SUN的律师违反规则，法官却说规则有点模糊，所以奖励SUN律师费，典型猪八戒的钉耙。这些在岳博士给最高法院的文件上有。

“不方便”还写出了一些法庭记录上没有的东西，比如说，他写到双方曾进行和解谈判，据查，那是双方私下的事，公开记录上没有。这个写手马脚也太拙劣了。

至于SUN穷凶极恶地对岳博士的家庭发起攻击，跟黑帮绑架小孩差不多。目的是想让岳博士取消其公司对SUN欺诈的指控。但公司的案子自有律师处理。

到底谁偷鸡不着蚀把米呢？SUN这么大的公司，盗版软件被活捉，居然有脸皮上法庭狡辩，其CEO以下被指着鼻子骂偷窃、欺诈。给美国上流社会、IT界的脸都丢尽了。以为靠玩黑的买通法官逼老岳交钱就能赢得正义？然后法官跟着玩下流的，结果是连整个美国的脸都丢了。美国人在自己国家胡来，这不是自己打自己吗？中国政府已经跟美国法院交涉，SUN等着瞧吧.

Popularity: 4%

这篇文章归类于: 理财·房产·法律。（已被阅读 4359 次）

您可以跟踪这篇文章的评论通过 RSS 2.0 feed。评论已经关闭，但是您可以从您的站点trackback。

9 条评论发表在“SUN是否又在欺诈”上

Jason 说：

2009年01月16日于11:24 下午

2. The departure of Claude M. Stern from Fenwick & West could not act
as an ethical barrier between him and his former colleagues at Fenwick &
West on confidences he obtained months before he left Fenwick
Claude M. Stern stated in his declaration that he left Fenwick & West in
June 2003. As to the whereabouts of the Netbula-Distinct ENE files, he
stated the following in his declaration:
As far as I can recall, I did not discuss or disclose any
confidential information concerning the Netbula v.
Distinct case to anyone at Fenwick…
I have asked my secretary Dandra Nichols to conduct a
search of the file database reflecting what files I brought
with me from Fenwick & West to Quinn Emanuel. I have
been informed by Sandra and believe that we have no file
at Quinn Emanuel relating to the Netbula v. Distinct ENE.
Based on this information, I have concluded that I
destroyed the Netbula v. Distinct file either before I left
Fenwick & West or shortly thereafter. Since I was the sole
neutral in the Netbula v. Distinct matter, it would not have
been my practice to leave that file at Fenwick & West
upon my departure from that firm.
ERV2.166-168, Claude Stern Decl. at ¶¶ 5-6 (emphasis added). Mr. Stern
also stated that he only discussed the ENE with Fenwick’s general counsel.
Mr. Stern qualified his statement with “as far as I can recall”, subject to
the limitations of his memory. But, Mr. Stern definitely talked to his
secretary at Fenwick about the ENE. See ERV2.146-7, Stern’s letter on
Fenwick & West stationery. Regarding the confidential ENE documents, Mr.
Stern made a string of deductions based on what his secretary at his new firm told him.
But, Mr. Stern failed to consider other possibilities. In fact, Mr. Stern
basically admitted that he lost track of the Netbula-Distinct ENE files when
he left Fenwick. He might have left copies of the ENE files on Fenwick’s
computers or office. That could explain how Wakefield possessed those
Netbula-Distinct case files.
Mr. Stern made no claim that he instituted an ethical-wall to protect the
ENE files while he was at Fenwick. The sharing of ENE files while Stern
was at Fenwick is therefore conclusively presumed. Once the confidences
were shared, there is no way to remove the information from people’s mind.
Stern’s departure from Fenwick could not undo the sharing.
Jason 说：

2009年01月16日于11:23 下午

A. Disqualification of Fenwick & West Due to Conflict of Interest
In 2002, Claude M. Stern, a Fenwick & West attorney, obtained
confidential information from Yue and Netbula regarding PowerRPC and
JavaRPC in the course of Netbula-Distinct litigation while serving as an
Early Neutral. At the time, Mr. Stern and Jedediah Wakefield had a close
work relationship at Fenwick & West.
After Stern allegedly left Fenwick in June 2003, Stern and Wakefield
continued to maintain a close relationship. Moreover, Wakefield
mysteriously possessed numerous documents about the Netbula-Distinct case. Wakefield fought vehemently to prevent the discovery of his and
Stern’s knowledge of the Netbula-Distinct ENE in the proceedings below.
Stern’s own declaration showed that he could not account for the
whereabouts of the confidential PowerRPC case documents. Under these
circumstances, it can be conclusively presumed that a sharing of confidences
between Stern and Wakefield had occurred. Accordingly, defense counsel
must be disqualified.
Jason 说：

2009年01月16日于11:22 下午

11.The Catch-22 Scheme is Impermissible

Defendants also say “[a]ny alleged infringement of the ‘additional copyrights’ could have and should have been brought, if at all, in the [Netbula-Sun] litigation.” DAB 35. See also, DAB 27-28, 35, 47 and 59.

Because Defendants made the judicial admission that Netbula and Yue had conflicting claims on the copyrights, “[t]he onus therefore rested with [defendant] to join the [plaintiff] to the [first] litigation. The [plaintiff] themselves were under no obligation to intervene…” Kourtis v. Cameron, 419 F.3d 989, 999 (9th Cir.2005).

But, Yue did make every effort to join Netbula-Sun. In addition to his October 22, 2007 motion to intervene and join Netbula-Sun, Yue also wrote to Sun’s defense counsel on October 26, 2007:

I am about to assert additional claims against StorageTek… For judicial economy, I think it’s far efficient for you to stipulate to the substitution of party by replacing Dongxiao Yue as the copyright plaintiff in the C06-07391-MJJ case.
ER.54:14-19; SRJN128-129 (emphasis added). Sun’s response was outright refusal. Sun’s counsel also authored the following court order:

Defendants’ Motion for Administrative Relief to Vacate Hearing on Non-Party Dongxiao Yue’s Request for Injunctive Relief and Impoundment [Docket Nos. 80-81] is hereby GRANTED.
SRJN132 (Doc. No. 94, Netbula-Sun) (emphasis added).

On November 19, 2007, as he had previously informed Sun and the Netbula-Sun court, Yue filed the Yue-Sun action. At the hearing next day, the Netbula-Sun court considered allowing Yue to join that case as co-plainitff[7], the following was the exchange:

THE COURT: [ALLOWING YUE] COMING IN AS A PARTY BUT RETAINING NETBULA AND THE REQUIREMENT THAT NETBULA BE REPRESENTED BY COUNSEL, HOW DOES THAT UPSET THE HEARING OF THOSE MOTIONS?
MR. PULGRAM: WELL, YOUR HONOR, IT’S NOT CLEAR TO ME WHAT… WOULD BE THE BENEFIT OF ALLOWING HIM TO APPEAR ON THOSE MOTIONS.
Tr. p.14:6-12; SRJN019. Again, Sun succeeded in excluding Yue from Netbula-Sun.

So, Defense counsel is playing this game: when Yue requests to join Netbula-Sun, they say no; when Yue files a separate lawsuit, they say Yue should have joined Netbula-Sun. This scheme is similar to a classic trap called Catch-22.

There was only one catch and that was Catch-22 … Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.
“That’s some catch, that Catch-22,” he observed.
“It’s the best there is,” Doc Daneeka agreed.
Rhodes v. Robinson, 380 F.3d 1123, 1129 (9th Cir. 2004)(quoting Joseph Heller, Catch-22, at 47 (6th ed. 1976)). No matter what he does, Yue can not have his day in court to litigate his copyright claims on the merits. Such scheme is impermissible, and must fail as a matter of law.
Jason 说：

2009年01月16日于11:21 下午

10.The Yue-Sun Case Had Different Nucleus of Facts

Defendants allege that “Yue fixates on a comment by Judge Jenkins that the [Netbula-Sun] case was not ‘completely overlapping’ with [Yue-Sun]” in his nonparty preclusion analysis. DAB 28. This is untrue. Yue only mentioned the “not overlapping” statement when discussing the retroactive disqualification of the judge. See page 42 of Yue’s opening brief.

Instead, Issues 1-4 of Yue’s appeal ask a very simple question: whether non-party Yue had had his day in court to vindicate his copyright claims on the merits. The answer to that question is undeniably no.

Defendants claim that “Yue has alleged infringement of different registrations allegedly protecting the same software.” DAB 30. This statement confuses the issues. Yue alleged that defendants infringed his YUE PWRPC, 00-SDK and 2K4 copyrights. A specific copyright protects the specific work[s] of authorship fixed in a tangible medium of expression. These three copyrights are distinct intellectual property rights, each protecting specific and distinct software code — statements of instructions written in computer programming languages. Therefore, Yue-Sun involves intellectual property rights that are disjoint from what is at issue in Netbula-Sun.

Defendants claim that the facts concerning defendant Abramovitz “were all identified as a basis for the infringement claims in [Netbula-Sun].” However, “Abramovitz” did not appear in the Netbula-Sun complaint and Yue only learnt about Abramovitz’s activities in October 2007. Similarly, Yue only came to know about Lisa K. Rady around October 2007 and learnt that she participated in the unlimited licensing of PowerRPC to third parties even after she wrote in her email that “we have exceeded the 1,000 distributions that we had right to”… Yue wanted to join Netbula-Sun and pursue these claims, but he was rejected.

The district court’s half-page analysis of the transactional nucleus of facts focused on the “transactions” in which StorageTek bought the licenses, and led to the following conclusion:

It is clear, therefore, that the two actions arise out of the same transactional nucleus of facts – Defendants’ license agreements with Netbula and Defendants’ use of Netbula’s PowerRPC software.
ER.46:3-12. Defendants are now essentially repeating the same. But the most relevant facts are the ones that give rise to a claim of infringement, not the purchase transaction that provided defendant a copy.

The district court noted that “much of the Yue-Sun Complaint is a verbatim restatement of Mr. Yue’s declaration presented to the Court in opposition to the Netbula-Sun defendants’ motion for summary judgment.” ER.46:8-10. Notwithstanding the fact that the Yue-Sun complaint was based on the October 22, 2007 motion, one simply cannot state a claim in a declaration that only states facts. The Netbula-Sun court’s legal standard was clear: “a plaintiff may not amend its complaint through argument in a brief opposing summary judgment, the Court will not address Plaintiff’s new claim.” Netbula, Llc v. Bindview Development Corporation, 516 F. Supp.2d 1137 (N.D.Cal. 9-10-2007)(Jenkins, J.). Therefore, even assuming that a plaintiff can add new claims in an opposition to a summary judgment, Judge Jenkins would not allow it, and he certainly did not.

In the January 18, 2008 summary judgment order in Netbula-Sun, Judge Jenkins decided the following three issues on the merits:

(1)The User Count for the SDK license

The SDK agreement stated one user “for each of the licenses purchased” may “use the PowerRPC SDK Product under Windows NT and 95/98 platforms; each user can only use the software on one computer….”On this issue, Judge Jenkins wrote:

both the 2000 and 2004 Agreements state that one user may use each of the licenses purchased. This provision does not limit how the software may be used… the limitation on the number of users … does not limit or condition the use of the license. Therefore, because this provision is not a limitation on the scope of the license, Plaintiff is not entitled to a copyright infringement claim on this issue.
The Netbula-Sun court didn’t cite any authority which held that a “one user on one computer’ restriction “does not limit or condition the use of the license.” Even so, its holding was a narrow one.

The Yue-Sun action, filed two months before that order, alleged different infringing activities with respect to the SDK, such as exceeding both the number of users and the number of computers. Counts I, II, III, V and VII of the FAC.

(2)The Excess Distribution of PowerRPC

The 2000 agreement stated that StorageTek “shall pay Netbula …for the right to distribute up to 1000 units of software containing the Supporting Programs.” The Netbula-Sun court admitted that the agreement was a “prepayment” agreement. The licenses were countable. Mr. Melnick wrote in an internal email: “We have only made 2 purchases for the rights to distribute a total of 2000 licenses.”

On exceeding the number of licenses, the Netbula-Sun court again concluded that the “prepayment” term is merely a contract covenant.

Yue-Sun involved claims that are different, such as distributing infringing derivative works, issuing floating licenses, fail to comply with the limited distribution clause, inducing infringement by others… See Counts IV, V, VIII and IX of the FAC.

(3) The Termination of the Netbula-StorageTek Agreement

The Netbula-StorageTek agreement was allegedly terminated upon Sun’s acquisition of StorageTek. The Netbula-Sun court held that “this [termination] provision does not limit the scope of the license.”The Yue-Sun action filed in 2007 alleged that whatever license ceased to exist because it was terminated. This case was about the existence of the license, not the scope. See Count X of the FAC.

In summary, the January 18, 2008 Netbula-Sun order only resolved three narrow issues. The Yue-Sun case filed in 2007 had 10 counts of infringement against seven defendants that were different from the claims in Netbula-Sun.
Jason 说：

2009年01月16日于11:21 下午

9.The Netbula-Sun Court Specifically Excluded Yue and the 00-SDK, 2K4 and YUE PWRPC Copyrights from Netbula-Sun

In the October 31, 2007 ex parte hearing[6], the Netbula-Sun court vacated Yue’s FRCP 24(a) motion to intervene and join Netbula-Sun, upon Sun’s motion for administrative relief. So, the FRCP 24(a) route for Yue to join Netbula-Sun had been closed.

On November 20, 2007, the Netbula-Sun court heard Netbula’s motion to substitute Yue as the copyright plaintiff as to the 1996 Copyright. Netbula’s former counsel, Ms. Brillet, was to argue this motion. The judge started out like this (quoting from transcript, see SRJN008):

THE COURT: OKAY. SO WE HAVE TWO MATTERS ON THIS MORNING. ONE IS THE … REQUEST TO SUBSTITUTE MR. YUE AS A PARTY IN THIS MATTER, DR. YUE, RATHER.
The judge then asked Dr. Yue: “Are you Mr. Yue?” After confirming that Dr. Yue was Mr. Yue, the judge told Yue to “listen and hear me clearly” and then stated that Yue “should cease and desist” from filing papers. And even if the district court would grant Netbula’s motion to replace Yue as the copyright plaintiff, “it still would not give [Yue] authority to do so…” ER.40; SRJN009.

The subsequent exchange was the following:

MR. YUE: WHAT’S THE COURT’S LEGAL RATIONALE FOR THAT?
THE COURT: THAT IS THE RATIONALE, AND THAT’S THE STATEMENT.
MR. YUE: FOLLOWING RULES OF CIVIL PROCEDURE –
THE COURT: MR. YUE, I AM GOING TO HAVE YOU TAKEN OUT IF YOU DON’T BE QUIET.
Id.The Netbula-Sun court was unambiguous: it would not allow Yue to file pleadings, one way or the other.

The Netbula-Sun court understood that there was a question about copyright ownership, and that Yue wanted to join Netbula-Sun to amend the complaint based on Yue PWRPC copyrights.

THE COURT: I KNOW SOMETHING TRANSPIRED IN THE COURSE OF A DEPOSITION AND THERE WAS SOME QUESTION ABOUT OWNERSHIP. I CAN READ THIS RECORD, AND IT SAYS FAIRLY CLEARLY THAT NETBULA WAS CREATED IN JULY OF 1996…
THE COURT: BUT WHAT I UNDERSTAND IS THE SOFTWARE AT ISSUE MIGHT BE ITERATIONS DOWNSTREAM OF THE PWRPC AND THE ONC RPC DEVELOPED IN THE ‘94/’95 TIMEFRAME.
THE COURT: DOWNSTREAM HE [Yue] WANTS TO FILE A MOTION TO AMEND.
2007/11/20, Tr. pages 5 and 7; SRJN010, SRJN012 (emphasis added).

At that point of the hearing, Defense counsel presented the 1996 Copyright certificate to the Netbula-Sun court:

MR. PULGRAM: WOULD IT BE HELPFUL TO LOOK AT THE COPYRIGHT REGISTRATION?
THE COURT: OF COURSE.
MR. PULGRAM: YOUR HONOR, THERE IS ONE COPYRIGHT THAT’S SUBJECT TO THIS CLAIM. IT IS IN THE NAME OF THE AUTHOR –
THE COURT: THAT’S SUBJECT TO?
MR. PULGRAM: EXCUSE ME?
THE COURT: SUBJECT TO?
MR. PULGRAM: THAT IS SUBJECT TO A CLAIM HERE. AS YOU KNOW, ANY COPYRIGHT REQUIRES ACTION, REQUIRE IT BE BROUGHT ON A REGISTERED COPYRIGHT. THERE’S ONE REGISTRATION. THIS IS IT… MR. YUE IS NOT LISTED ON THIS COPYRIGHT ANYWHERE. THE CLAIMANT ON THE COPYRIGHT IS NETBULA, LLC. THE COPYRIGHT HAS BEEN PURSUED BY NETBULA, LLC IN THIS ACTION FOR 10 MONTHS.
THE COURT: LET ME JUST STOP YOU.
MR. PULGRAM: YES, YOUR HONOR.
THE COURT: IS THIS THE ONLY COPYRIGHT AT ISSUE –
MR. PULGRAM: YES.
Tr. pp.8:10-9:6; SRJN013-14. By specifically constraining the Netbula-Sun action to the 1996 Copyright, the Netbula-Sun court and Sun excluded the other copyrights and Yue’s participation. The Netbula-Sun court’s effort to exclude Yue was also evident from the following exchange in that hearing:

THE COURT: BUT YOU DON’T ARGUE THAT THE ASSIGNMENT IS NOT VALID, RIGHT?
MR. PULGRAM: EXCUSE ME?
THE COURT: YOU DON’T ARGUE THE ASSIGNMENT IS NOT VALID?
MR. PULGRAM: THERE IS SOME LAW TO THAT EFFECT, YOUR HONOR.
THE COURT: BUT IT’S NOT BEFORE ME. I HAVEN’T SEEN THAT IN YOUR PAPERS.
MR. PULGRAM: I BELIEVE THERE’S A PARAGRAPH, THE LAST PARAGRAPH OF OUR ARGUMENT. BUT I DON’T THINK YOU HAVE TO REACH THAT.
THE COURT: THAT’S WHAT I AM SUGGESTING TO YOU. SO TO DENY THE MOTION MEANS THAT HE’S NOT SUBSTITUTED IN AS A PARTY?

Tr. p.15:5-19; ER.58; SRJN020. Based on the above, Yue alleged that the Netbula-Sun court coached defense counsel Pulgram.

Defendants disagree. In their answer brief, they say the following:

There is similarly no merit to Yue’s assertion… What the district court “suggested” was that, in ruling on the motion to substitute, it need not reach the question whether the assignment was valid. SRJN 20,11/20/07 Transcript at 15:5-17..
DAB 47, fn.9 (emphasis original). Essentially, Defendants think that the word “THAT” in “THAT’S WHAT I AM SUGGESTING TO YOU” was referring to Pulgram’s “BUT I DON’T THINK YOU HAVE TO REACH THAT.”

Defendants now claim that “Netbula had the right to continue pursuing the [Netbula-Sun] case even after the alleged assignment, and could have timely sought leave to amend to identify its other alleged copyrights.” DAB 45. But, Netbula could only continue its action on the copyright originally pled in the complaint – the 1996 Copyright. After the assignment, Yue became the sole owner of the 00-SDK and 2K4 Copyrights. Under Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881, 886 (9th Cir. 2005), only Yue had the standing to bring suit on these two copyrights.
Jason 说：

2009年01月16日于11:21 下午

.Defendants Asserted that Yue and Netbula had Conflicting Claims on the 1996 Copyright

As discussed at AOB 20, Defense counsel Laurence Pulgram wrote in one of the motions below:

there is a common question of whether Yue or Netbula holds the copyrights in the software, and what parts are owned by each.
ER.30:22-26.The word “or” in the “whether … or” construct leads to the question: does Yue hold the copyrights, or does Netbula hold the copyrights? Defendants elaborated their point further: for each part of the software, they would question who owns the copyrights of that part. Basically, they would pit Yue against Netbula in terms of copyright ownership. Two persons claiming the same copyrights are making conflicting claims.

Defendants’ game plan was fully revealed in the related litigation. See, ER.52:7-18, Declaration of Yue at ¶¶5-6 (“Laurence Pulgram pointed out that [Yue] owned the copyright”). This gambit prompted Netbula to assign its “1996 Copyright” to Yue, in an effort to streamline the litigation. Netbula also assigned the other copyrights, including the “00-SDK” and “2K4” copyrights to Yue.
Jason 说：

2009年01月16日于11:20 下午

3.Yue and Netbula Are Different Persons

Yue is a natural person; Netbula is an artificial entity founded in July 1996. Netbula never owned the YUE PWRPC copyright and never had standing to bring suit based on Yue’s copyrights, because “only owners of an exclusive right in the copyright could bring suit.” Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881, 886 (9th Cir. 2005) (individual cannot sue on copyrights owned by a company). See also, Triple Tee Golf, Inc. v. Nike, Inc., NO. 4:04-CV-302-A. (N.D.Tex. 8-10-2007)(the corporation had no standing to sue on copyrights owned by its founder).

4.Yue has an Independent Interest in Pursuing Copyright Claims Based on the Yue PWRPC Copyright

YUE PWRPC was registered on November 27, 2007 with Registration Number TXu 1-576-987. Yue timely informed this Court and the court below about the status of registration[3] in July 2008.

Sun claims that the “pre-July 1996” YUE PWRPC copyright protected the same thing: “the right to control copying of PowerRPC software”. DAB 36. This is incorrect. The “Netbula registrations” only cover the software code added by Netbula in those particular versions. The pre-Netbula elements Yue authored remain the property of Yue. Only Yue can assert copyrights claims based on his copyrights[4]. See, Silvers.

Under the copyright law, Yue is entitled to recover damages and defendants’ profits attributed to the infringement of Yue’s copyrights; and Netbula is entitled to recover damages and profits attributed to the infringement of Netbula’s copyrights. “Actual damages are usually determined by the loss in the fair market value of the copyright.” Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 708-09 (9th Cir.2004). In determining the damages, the features and functionality of the software are factors to be considered. SeeMontgomery v. Noga, 168 F.3d 1282, 1291-92 (11th Cir. 1999)(discussing the software features, speed, percentage of source code changes in the context of assessing damages). With respect to Defendants’ profits, the factors such as software features and even number of lines of code may be used as apportionment measures. For instance, in the Netbula v. BindView case, defense counsel Laurence Pulgram and Jedediah Wakefield attempted to use the lines of code to determine the apportionment of BindView’s profits.

Defendants contend that “Netbula claimed to hold all such exclusive rights in the PowerRPC product.” DAB 34-35 (emphasis added). Defendants add the word “all” themselves. In Netbula-Sun, Netbula alleged exclusive rights under the Copyright Act with respect to “the only copyright at issue” — the 1996 Copyright – in that case. Netbula had no exclusive rights with respect to the pre-Netbula YUE PWRPC code. Yue has the exclusive rights in the pre-Netbula software he wrote.
Jason 说：

2009年01月16日于11:20 下午

2.Yue is Entitled to His Copyright Claims

Copyright in a work “vests initially in the author or authors” of a work. 17 U.S.C. § 201(a). Yue authored the “YUE PWRPC” software from 1994 to July 1996, he has always been the owner of the YUE PWRPC.

Netbula, LLC was founded in July 1996. Its PowerRPC software was a derivative work of YUE PWRPC. First Amended Complaint of Yue-Sun (“FAC”) at ¶ 15; ER.3:14-17. The 1996 version of PowerRPC has Registration No. TX 6-211-063 (the “1996 Copyright”). Netbula also registered other versions of PowerRPC, including the “00-SDK” (Reg. No. TX 6-437-847) and “2K4” (Reg. NoTX 6-491-697) copyrights.

“The copyright in a . . . derivative work extends only to the material contributed by the author of such work.” 17 U.S.C. § 103(b)(emphasis added). Elements drawn from a pre-existing work remain the property of the owner of the pre-existing work and “[i]t is irrelevant whether the pre-existing work is inseparably intertwined with the derivative work.” Stewart v. Abend, 495 U.S. 207, 223 (1990).

In Oddo v. Ries, 743 F.2d 630 (9th Cir. 1984), Oddo and Ries formed a partnership to create a book partially based on magazine articles Oddo previously wrote. Dissatisfied with Oddo’s progress, Ries hired another writer to complete the manuscript Oddo was writing and published the finished book. The Ninth Circuit found that Ries did not infringe the partnership’s copyright in the manuscript but infringed Oddo’s copyrights in the magazine articles. Here, like Oddo, Yue retained the copyrights in the YUE PWRPC software, from which PowerRPC was derived.

Defendants point out that Yue granted Netbula an “oral license” for creating derivative work. DAB 40. This fact shows that Yue retained the ownership of YUE PWRPC copyrights, because an exclusive copyright license or transfer of copyright ownership must be in writing. Konigsberg Intern. Inc. v. Rice, 16 F.3d 355, 356–57 (9th Cir.1994). See also Effects Assocs. Inc. v. Cohen, 352 908 F.2d 555, 557–58 (9th Cir.1990).
Jason 说：

2009年01月16日于11:19 下午

II.SUN’S SHAM ARGUMENTS

In Defendants’ Answer Brief (“DAB”), Sun claims that Netbula assigned the copyrights to Yue “after the close of discovery” in Netbula-Sun. DAB 2. This is false. The “00-SDK” and “2K4” copyrights were assigned to Yue on September 26, 2007. ER.3:17-20. Netbula deposed Sun’s FRCP 30(b) (6) witness Michael Abramovitz on October 23, 2007. ER.31:27-28; See also, Exhibits to Appellees’ Supplemental Request for Judicial Notice, SRJN071. There had been very little discovery in Netbula-Sun[2]. On January 10, 2008, the Netbula-Sun court ordered that the “[d]iscovery issues shall be discussed at next status conference hearing” set for January 22, 2008. See, Civil Minutes (Document 136), Exhibit E to Appellant’s Request for Judicial Notice (“RFJN”).

Defendants also contend that Yue’s action was a “parallel lawsuit to circumvent” the Netbula-Sun summary judgment order. This is false. Yue filed this lawsuit on November 19, 2007. The Netbula-Sun court issued its summary judge order on January 18, 2008. Yue could not have predicted the outcome of Yue-Sun when he filed the suit. In fact, the Yue-Sun complaint was directly derived from the Yue’s October 22, 2007 motion to intervene and join Netbula-Sun. That motion was before Sun’s motion for summary judgment in Netbula-Sun.

Falsus in uno, falsus in omnibus. The above are just two examples.