A California software development company being sued in the U.K. for copyright infringement asked a U.S. court on Tuesday to declare it is innocent of the charges under U.S. law.
BulletProof Technologies Inc., based in Calabasas, California, seeks a declaratory judgement from the court stating it has not infringed any U.S. copyrights from its U.K. accuser, Navitaire Inc.
BulletProof filed its lawsuit against Navitaire, a wholly-owned subsidiary of Accenture Ltd., in the U.S. District Court, District of Utah, Central Division.
An Accenture spokeswoman said she was unaware of the lawsuit and couldn't immediately offer comment. A call to Navitaire, based in Minnesota, seeking comment wasn't immediately returned.
The problem dates back to 1996, when Navitaire, then called Open Skies Inc., sold a travel reservation system to EasyJet Airline Co. Ltd., a London-based airline, according to Tuesday's complaint.
EasyJet became unhappy with Navitaire's product, called OpenRes, and with Navitaire's responsiveness to its requests, the complaint says.
"From 1999 onwards, we found Navitaire becoming very unresponsive to our needs. The changes we requested were made slowly and expensively," said Toby Nicol, head of the airline's corporate affairs.
Among other things, EasyJet found OpenRes to be slow, inaccurate, unreliable and unstable, he said.
For example, OpenRes corrupted data, suffered system breakdowns and couldn't retain all the data the airline wanted to archive, BulletProof says in its complaint. EasyJet also was unhappy with an increase in licensing fees for OpenRes.
Eventually, EasyJet decided it needed a new travel reservation system and hired BulletProof to build it.
In December 2001, EasyJet implemented the system BulletProof built for it, called eRes. They had agreed previously that BulletProof would be able to sell eRes to other companies as well.
ERes has been performing extremely well for EasyJet and the company is extremely happy with it, EasyJet's Nicol said. It works much better than OpenRes, he said.
However, in May 2002, Navitaire sued EasyJet in the U.K., alleging that eRes violates Navitaire software copyrights, the BulletProof complaint states. Months later Navitaire also added BulletProof to the lawsuit.
In its lawsuit, Navitaire initially alleged copying of its source and binary code, but backed off this claim after it became evident during the discovery phase that this wasn't true, BulletProof says in Tuesday's complaint.
Then, Navitaire amended its complaint alleging instead that eRes accepted some of the same commands as its product, included similar database fields and employed the same business logic, according to BulletProof's Tuesday complaint.
While the case is still ongoing in the U.K., BulletProof filed its lawsuit because it is convinced that Navitaire's allegations don't constitute copyright infringement in the U.S.
Should the Utah court rule in favor of BulletProof, the company could then proceed to sell its eRes product without fear of a possible copyright violation in the U.S. The company has several companies interested in buying eRes, according to its complaint.
BulletProof states in its complaint that eRes is significantly different from OpenRes. Among the differences is that OpenRes was written in Cobol, while eRes is written in Visual Basic. The programs are also different in structure.
"At no time did BulletProof have access to either the source code or object code of the OpenRes program, and, hence, Navitaire's code was not copied," BulletProof says in its complaint.
"While the new BulletProof product and the obsolete Navitaire product performed many of the same functions (albeit in a different way) when invoked by similar commands, those functions were executed by wholly different code," the complaint reads.
Leading the charge for BulletProof is Gary L. Reback, a well-known Silicon Valley attorney who has experience in software copyright cases, most notably as lead counsel to Borland Software Corp. in a case against Lotus Development Corp. that reached the U.S. Supreme Court.
In that case, Lotus alleged Borland had infringed in its copyright by using in a Borland spreadsheet commands found in the Lotus 1-2-3 spreadsheet. The Supreme Court tied 4-4 in that case in 1996, thus upholding a previous Borland win in an appeals court.
Navitaire's allegations in the U.K. are similar to the ones Lotus made against Borland, Reback said.
"All of a sudden, these same issues we thought were resolved back in 1996 are in front of us again," said Reback, also known for representing Netscape in the early days of its campaign against Microsoft Corp.'s actions in the browser market. That Netscape campaign is credited with jump-starting the U.S. government's historic antitrust lawsuit against Microsoft.
Navitaire's attempts to claim business logic as something that can be protected by copyright is particularly troubling for Reback.
"None of us knows what business logic is, but it's kind of a scary thought, because if you're a bank there's only one way to compute interest," said Reback, currently of counsel with the Carr & Ferrell LLP law firm in Palo Alto, California.
The U.K. case law is generally considered to be less clear than the U.S. case law on matters of copyright software, Reback and Nicol said. That is why BulletProof and EasyJet hope that a favorable decision from the Utah court will strengthen their defense in the U.K., they said.
"Navitaire's amended claims would not even be cognizable in the United States in that the subject matter that Navitaire alleges was copied is not copyrightable under settled United States copyright law. But at least some elements of these claims are as yet unresolved under the copyright law of the United Kingdom," the complaint reads.
Still, EasyJet will continue its fight in the U.K., by moving, within the next 48 hours, to have the Navitaire lawsuit dismissed, Nicol said.
In addition to stating it hasn't violated U.S. copyright laws, BulletProof is also asking the court to declare that it has the right to sell, distribute and market eRes. BulletProof also requests that the court declare that Navitaire lacks lawful ownership of OpenRes, because, through a chain of acquisitions, the product was developed by a variety of vendors before becoming part of Navitaire's portfolio.