Re: The Busybox/softwarefreedom.org 'won' in court (default judgment) -- where is the press release and all the buzz?

[Alexander Terekhov]

Here's Bell Microproducts' ANSWER TO THE COMPLAINT:

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------x
ERIK ANDERSEN AND ROB LANDLEY,
Plaintiffs,
-against-
BELL MICROPRODUCTS, INC. D.B.A.
HAMMER STORAGE,
Defendant.

Civil Action No. 08 CV 5270 (HB)
ECF CASE
------------------------------------------------------------x

ANSWER TO THE COMPLAINT

Defendant Bell Microproducts, Inc. (“Bell Microproducts”), through its
undersigned counsel, as and for its Answer to the Complaint filed by
Erik Anderson and Rob Landley, states as follows:

THE PARTIES

1. Denies knowledge or information sufficient to form a belief as to the
truth of the allegations contained in Paragraph 1 of the Complaint.

2. In response to paragraph 2 of the Complaint, Bell Microproducts
admits that it is a California corporation with its principal place of
business at 1941 Ringwood Avenue, San Jose, CA 95131. Bell Microproducts
admits that it is a distributor of computer hardware and software. Bell
Microproducts further admits that it conducts business in New York.
Except as specifically admitted, Bell Microproducts denies the
allegations in paragraph 2 of the Complaint.

JURISDICTION AND VENUE

3. In response to paragraph 3 of the Complaint, Bell Microproducts
states this is a legal conclusion not subject to an admission or denial.

4. In response to paragraph 4 of the Complaint, Bell Microproducts
admits that it owns and operates a website at shop.bellmicro.com where
it sells hardware and software products to, including, but not limited
to, residents of New York state. Except as expressly admitted, Bell
Microproducts denies the allegations in paragraph 4 of the Complaint and
states that personal jurisdiction is a legal conclusion not subject to
an admission or denial.

5. In response to paragraph 5 of the Complaint, Bell Microproducts
admits that it conducts business in New York state. Except as expressly
admitted, Bell Microproducts denies knowledge or information sufficient
to form a belief as to the truth of the matters asserted therein and
states that whether venue is proper is a legal conclusion not subject to
an admission or denial.

FACTUAL BACKGROUND

6. Denies knowledge or information sufficient to form a belief as to the
truth of the allegations contained in Paragraph 6 of the Complaint.

7. Denies knowledge or information sufficient to form a belief as to the
truth of the allegations contained in Paragraph 7 of the Complaint.

8. In response to paragraph 8 of the Complaint, Bell Microproducts
states that the License speaks for itself and on that basis, denies any
allegations of paragraph 8 inconsistent therewith.

9. In response to paragraph 9 of the Complaint, Bell Microproducts
states that the License speaks for itself and on that basis, denies any
allegations of paragraph 9 inconsistent therewith.

10. Denies knowledge or information sufficient to form a belief as to
the truth of the allegations contained in Paragraph 10 of the Complaint.

11. Bell Microproducts admits that it sells storage devices containing
firmware, which it purchases from a third party. Defendant further
admits that it makes the firmware available for download on its website.
Except as expressly admitted, Bell Microproducts denies all the
allegations contained in paragraph 11 of the Complaint.

12. Bell Microproducts admits that it purchases storage devices that
contain firmware from a third party. Bell Microproducts is unaware if
the firmware it purchases from the third party contains BusyBox. Bell
Microproducts states that the License speaks for itself and on that
basis, denies any allegations of paragraph 12 inconsistent therewith.
Except as expressly admitted, Bell Microproducts denies all the
allegations contained in paragraph 12 of the Complaint.

13. In response to paragraph 13 of the Complaint, Bell Microproducts
denies, generally and specifically, each and every allegation contained
therein.

14. In response to paragraph 14 of the Complaint, Bell Microproducts
states that the License speaks for itself and on that basis, denies any
allegations of paragraph 14 inconsistent therewith.

15. Upon information and belief, Bell Microproducts denies the
allegations of Paragraph 15 of the Complaint.

16. In response to paragraph 16 of the Complaint, Bell Microproducts
admits that Plaintiffs sent a letter dated April 21, 2008, addressed to
“Hammer Storage by Bell Microproducts” alleging Hammer Storage failed to
comply with the License. Except as expressly admitted, Bell
Microproducts denies, generally and specifically, the allegations
contained in paragraph 16 of the Complaint.

COUNT 1
COPYRIGHT INFRINGEMENT

17. In response to paragraph 17, Bell Microproducts incorporates its
answers from paragraphs 1 through 16 as though fully stated herein.

18. Denies knowledge or information sufficient to form a belief as to
the truth of the allegations contained in Paragraph 18 of the Complaint.

19. In response to paragraph 19 of the Complaint, Bell Microproducts
denies, generally and specifically, each and every allegation contained
therein.

20. In response to paragraph 20 of the Complaint, Bell Microproducts
denies, generally and specifically, each and every allegation contained
therein.

21. In response to paragraph 21 of the Complaint, Bell Microproducts
denies, generally and specifically, each and every allegation contained
therein.

22. In response to paragraph 22 of the Complaint, Bell Microproducts
denies, generally and specifically, each and every allegation contained
therein.

In response to Plaintiffs’ “Prayer for Relief,” Bell Microproducts
denies that Plaintiffs are entitled to any relief, injunctive, monetary,
or otherwise, against Bell Microproducts.

DEFENSES

FIRST DEFENSE
(FAILURE TO STATE A CLAIM)

The Complaint fails to set forth facts sufficient to state a claim upon
which relief may be granted against Bell Microproducts and fails to
state facts sufficient to entitle Plaintiffs to the relief sought, or to
any other relief from Bell Microproducts.

SECOND DEFENSE
(ESTOPPEL)

Plaintiffs are estopped from pursuing their claims against Bell
Microproducts. 

THIRD DEFENSE
(UNCLEAN HANDS)

The Complaint, and each claim for relief therein that seeks equitable
relief, is barred by the doctrine of unclean hands.

FOURTH DEFENSE
(WAIVER)

Plaintiffs have waived their claims against Bell Microproducts.

FIFTH DEFENSE
(DE MINIMIS USE)

Plaintiffs claims are barred by the doctrine of de minimis use.

SIXTH DEFENSE
(FIRST SALE DOCTRINE)

Plaintiffs claims are barred by the first sale doctrine.

SEVENTH DEFENSE
(INDEMNIFICATION)

Any purported damages allegedly suffered by Plaintiffs are the results
of the acts or omissions of third persons over whom Bell Microproducts
had neither control nor responsibility.

EIGHTH DEFENSE
(RIGHT TO ASSERT ADDITIONAL DEFENSES)

Bell Microproducts reserves the right to assert additional affirmative
defenses as such time and to such extent as warranted by discovery and
the factual developments in this case.

WHEREFORE, Defendant Bell Microproducts prays as follows:

(1) That Plaintiffs take nothing by virtue of the Complaint herein and
that this action be dismissed in its entirety;

(2) For costs and attorneys’ fees incurred; and

(3) For such other and further relief as the Court may deem just and
proper.

Dated: New York, New York
September 24, 2008

Respectfully submitted,
JONES DAY
/s/ Lynn M. Marvin
Ognian Shentov, Esq. (OS-4868)
Lynn M. Marvin, Esq. (LM-2281)

JONES DAY
222 E. 41st Street
New York, NY 10017
Telephone: 212-326-3939
Facsimile: 212-755-7306
Counsel for Defendant
BELL MICROPRODUCTS, INC.

regards,
alexander.

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