NEVADA CITY, Calif. March 25, 2010 - AtPac, a former software provider for Nevada County's Clerk-Recorder Office, filed a lawsuit on Feb. 18 in federal court against Aptitude Solutions, the County of Nevada and the Office of the Clerk-Recorder. The lawsuit alleges that the defendants breached contractual obligations, infringed AtPac's copyrights and unlawfully disclosed proprietary information in 2009. The suit asks for an unspecified amount in punitive damages.
Cypress LLP, the attorneys for Aptitude, Nevada County and the Clerk-Recorder's office filed a motion to dismiss parts of the suit on Wednesday, March 24.
Outdated and Obsolete
The motion asks for dismissal of Plaintiff's Fourth Claim for Relief for Violation of the Computer Fraud and Abuse Act; and (2) to strike Plaintiff's request for statutory damages for copyright infringement.
While the case law cited in the motion -- as usual with such proceedings -- is highly specialized and rather arcane, the introduction makes for an interesting read:
This case purports to arise from a complex and clandestine operation involving the misappropriation of high-tech trade secrets, infringement of software copyrights, breach of a software license and violations of the Computer Fraud and Abuse Act (the "CFAA"). Yet, this case is far simpler. It is about a software designer whose product could not keep up with the demands of its market, so it lost a key account to a competitor with a far superior product. (1) Instead of spending its time and resources improving its software, plaintiff AtPac, Inc. ("AtPac") is spending them in court, accusing its competitor and its former licensee of stealing its outdated and obsolete trade secrets.
AtPac has filed this suit against its former software licensee, County of Nevada (the "County"), the County's Clerk-Recorder, Gregory Diaz ("Diaz"), and Aptitude Solutions, Inc. ("Aptitude"), the competitor who landed the valuable account as software provider to the County for Clerk-Recorder data and information management. AtPac contends that the County and Diaz disclosed to Aptitude various trade secrets and confidential, proprietary information to Aptitude in connection with the transition from AtPac's software system to Aptitude's.
Although the actual evidence in this case will show the falsity of each of AtPac's claims, the County now seeks only the dismissal of AtPac's Fourth Claim for Relief for violation of the CF AA and for an order striking AtPac' s claim for statutory damages for copyright infringement. (2)
(1) It is also a transparently political maneuver by one of the plaintiff's lawyers who is running for Clerk-Recorder of Nevada County against the incumbent, defendant Gregory Diaz, in the June 8, 2010 election.
(2) This motion is made concurrently with motions by Defendants Diaz and Aptitude for judgment on the pleadings on substantially the same grounds as this motion is made. The reason for the filing of multiple and duplicative motions by these Defendants, rather than joining in this motion, is that on March 18, 2010, counsel for Defendants requested an additional 6 days in which to respond to the Complaint on behalf of Diaz and Aptitude so that their response would be due on March 24, 2010, the agreed upon deadline for the County's response to the Complaint. Counsel for Plaintiff refused to grant the 6-day extension unless counsel for Defendants agreed to file only an answer and not a motion to dismiss. As counsel for Defendants was unwilling to compromise any of the Defendants' rights to file a substantive, dispositive motion, she declined to accept the unreasonable conditions on the proffered extension of time and instead filed an answer on behalf of Diaz and Aptitude on March 19, 2010.
Copyright Filed Only to Sue
Attorney Caroline Mankey, on behalf of the defendants, points out that "AtPac did not register its Criis™ software until January 26, 2010, well after the commencement of the alleged infringement, which AtPac alleges began in or around January 2009."
Mankey also dismantles AtPac claims about unauthorized access, stating that computers -- owned, operated and located by the county in the Nevada County Rood Center -- are under the control of the county, not a third party like AtPac. "AtPac here is challenging the County's and Diaz's access of the County's own computers and server. Nowhere does AtPac allege that the purported "protected computers" accessed by Defendants belong to AtPac - because they do not. The only computers as to which access is alleged are computers belonging to the County on which it ran the software program that it had licensed from AtPac."
In plain English, if you access software on your own computer, you don't need to hack into your own machine.
The motion will be heard on April 26 at 2 pm in court.
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