Re: New Brinks v Jim Rojas Update

[Jim Rojas <jrojas@xxxxxxxxxxxx>]

Case 3:07-cv-00437 Document 31 Filed 10/02/2007 Page 1 of 11
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
Brink's Home Security, Inc.,
Plaintiff,
Case No.: 3: 07 CV 0437-B
v.
Jim Rojas,
Defendant.
BRINK'S MEMORANDUM REGARDING
PERSONAL JURISDICTION OVER DEFENDANT JIM ROJAS
This involves intentionally tortious acts committed by Defendant Jim
Rojas ("Rojas")
through which Rojas knowingly harmed Brink's Home Security, Inc.
("Brink's"), whose principal
place of business and property are located in Irving, Texas. By virtue
of his many intentional
activities targeted to Brink's and its property, Rojas should have
reasonably anticipated being
haled into court in Texas, and accordingly personal jurisdiction exists
here.
Factual Background
Brink's is a leader in the industry of providing alarm systems and
security monitoring to
homeowners. Brink's principal place of business is located in Irving,
Texas. In providing its
security systems and services, Brink's uses valuable intellectual
property, including patented
technology and copyrighted software. Brink's technicians use
installation and programming
manuals containing trade secrets and a proprietary "programmer" to
activate security systems,
create settings, and protect these settings through lockout codes.
Brink's does not provide these
manuals or its programmers to anyone outside of Brink's. Additionally,
Brink's does not sell its
alarm equipment to its customers but instead requires customers to sigh
a "Protective Service
Agreement ("PSA") which provides that Brink's will own the equipment
installed in the
4593685
Case 3:07-cv-00437 Document 31 Filed 10/02/2007 Page 2 of 11
customer's house and prohibits a customer from removing, selling, or
altering any of the
equipment. See Exhibit A (PSA).
Rojas operates the Internet website www.tech-man.com (the "Tech-Man
Website"),
where he offers for sale Brink's equipment, offers to rent Brink's
programmers, offers to provide
the service of circumventing the lockout codes protecting the settings
of Brink's control panels,
and offers to buy Brink's equipment and programmers. See Complaint ¶J
17-23, Exs. C-F.
Six months before this suit was filed, Brink's notified Rojas of its
claims. See Exhibit B
(September 6, 2006 Brink's letter). This letter laid out Plaintiff's
concerns and claims, cited legal
authorities, and provided a sample PSA. Id. Within two hours of
receiving Brink's letter, Rojas
responded by email, refusing to comply, threatening Brink's, and making
unsupported legal
arguments. See Exhibit C hereto (September 6, 2006 email from Rojas).
In his e-mail response, Rojas expressed familiarity with Brink's and its
services,
products, contracts, and intellectual property claims. He expressed
specific familiarity with
Brink's website, and claimed essentially that he had the right to make
commercial use of
anything that Brink's itself posted on its website (a proposition
Brink's believes to be contrary to
copyright law). Id. ¶ 1. He asserted, contrary to Brink's letter and its
standard PSA Agreement,
that Brink's "chooses to abandon" security systems for which Brink's
does not continue to
provide monitoring services?a factual assertion that could only be made
based on familiarity
with Brink's business and its former customer relationships all over the
country. Id. ¶ 2. He
stated that he regularly seeks out and purchases Brink's programmers (a
proprietary device), and
that he also solicits and receives Brink's equipment, on the order of
"maybe 2 boxes [that]
contain a great deal of Brinks equipment" per week. Id. ¶ 3 and 7. He
stated that he regularly
"reprogram[s]" Brink's control boards, despite the anti-circumvention
technology contained
therein which Brink's believes is protected by 17 USC § 1201, and he
asserted "no obligation to
follow your client's contract limitations," which his message also
expressed familiarity with. Id.
4593685 - 2 -
Case 3:07-cv-00437 Document 31 Filed 10/02/2007 Page 3 of 11
¶ 4. He also expressed familiarity with where and how Brink's has
installed new security
systems. Id. ¶ 5. Finally, he expressed familiarity with unauthorized
use of Brink's systems by
"many dealers in the South, like in Texas, Georgia, South Carolina,
Tennessee, & Alabama."
Id. ¶ 8.
Brink's responded with a second letter, responding to Rojas'
contentions. See Exhibit D
(October 12, 2006 Brink's letter). This letter gave Rojas clear notice
of Brink's ownership of all
of its programmers and the great majority of its installed equipment. It
also provided Rojas with
more specific legal authorities and explanations as to the copyright
anti-circumvention claim,
trade secret misappropriation claims, and patent infringement claim
including providing a copy
of the Brink's U.S. Patent No. 5,805,064 (the "Brink's '064 Patent").
Rojas' responded quickly
again, a mere half hour later, in a short email defiantly dismissing
Brink's claims. Exhibit E
(October 12, 2006 Rojas email). In spite of Brink's notices, Rojas
knowingly continued his
tortious activities of offering his services (such as reprogramming in
violation of Brink's patent,
trade secret and copyright anti-circumvention rights) and Brink's
products (including converted
products such as Brink's proprietary programmers which are tightly
guarded and never publicly
released by Brink's) through his website.
Rojas's responses to Brink's letters show that he has long conducted
significant business
activities knowingly making use of Brink's physical, contractual and
intellectual property.
Argument
I. THIS COURT HAS SPECIFIC JURISDICTION OVER ROJAS BECAUSE ROJAS
PURPOSELY DIRECTED INTENTIONAL TORTIOUS CONDUCT TOWARD
BRINK'S, KNOWING THAT BRINK'S WAS LOCATED IN TEXAS AND SUFFERED
THE EFFECTS OF THIS CONDUCT IN TEXAS.
Specific personal jurisdiction may be based on intentional tortious
conduct that is
purposefully directed toward the forum, knowing that the injury would be
felt in that forum.
Calder v. Jones, 465 U.S. 783 (1984). In Calder, the plaintiff alleged
she had been libeled in an
4593685 - 3 -
Case 3:07-cv-00437 Document 31 Filed 10/02/2007 Page 4 of 11
article published in a national magazine with a large circulation in the
forum state. Id. at 784.
The plaintiff filed suit against two nonresidents who wrote and edited
the article. Id. at 784-
786. In finding personal jurisdiction, the Supreme Court noted that
defendants' "intentional,
and allegedly tortious, actions were expressly aimed" at the forum state
and defendants "knew
that the brunt of that injury would be felt by [plaintiff] in the State
in which she lives and
works." Id. at 789-90. "Under the circumstances, [defendants] must
'reasonably anticipate
being haled into court there." Id. at 790 (citing World-Wide Volkswagen
Corp. v. Woodson, 444
U.S. 286, 297 (1980)). Under Calder, jurisdiction is proper here.
A. Rojas' Significant Regular Offering of His Circumvention and
Lock-Breaking
Services And Brink's Converted or Contractually Protected Products
Constitute Intentionally Tortious Actions Purposely Directed at Brink's.
The Complaint alleges that Defendant Rojas has: (1) converted Brink's
equipment and
programmers, (2) misappropnated Brink's trade secrets by using or
disclosing infonnation in
Brink's manuals, (3) tortiously interfered with Brink's contracts (the
PSAs signed by customers
including Texas residents), (4) induced and/or contributed to the
infringement of the Brink's
'064 Patent by offering to sell Brink's keypads, and (5) offered to
circumvent a copyright
protection system (Brink's lockout codes) and trafficked in
circumvention technology
(instructions and Brink's programmers). See generally Plaintiff's
Complaint. All of this tortious
conduct seriously harms Brink's, in Texas.
Rojas was aware of Brink's even before Brink's sent its letters. Rojas's
email response to
Brink's demand letters expressed familiarity with Brink's website, noted
that he had been
purchasing and using Brink's programmers for at least six years and that
he regularly dealt in
Brink's equipment (2 boxes each with a "great deal" of Brink's equipment
each week), and,
among other things, claimed that he didn't believe Brink's PSA
agreements were void or
unenforceable?a determination that could only be made by one very
knowledgeable concerning
4593685 - 4 -
Case 3:07-cv-00437 Document 31 Filed 10/02/2007 Page 5 of 11
Brink's and its many customer and former customer relationships. See Ex.
C. It is clear from
this that Rojas had been knowingly directing his business activities to
Brink's for some time.
Moreover, at least as of his receipt of the September 6, 2006 letter,
Rojas had specific
undeniable notice of Brink's claims and the harm to Brink's from Rojas'
activities. See Ex. B.
Thus he was aware by September 6, 2006 not only of Brink's but also its
physical and
intellectual property claims and how his actions damaged them.'
When Brink's further explained its claims and provided a copy of the
Brink's '064 Patent,
he immediately expressed defiance: "1 have no further interest in
hearing what you, or your
client have to say in regards to the equipment, programmers, or
programming of abandoned
Brinks systems. I will continue to buy, sell, or trade Brinks parts,
programmers & accessories, as
it becomes available on the internet, or mailed to me." Ex. E (emphasis
added). In other words,
he had long been buying, selling and trading Brink's parts, programmers
and accessories?all
activities that Brink's believes violate its physical, contractual and
intellectual property rights?
and he would continue doing so.
In light of Rojas' knowledge of Brink's and its claimed rights, and his
substantial and
continuing activities based on allegedly illegal use of Brink's
equipment and intellectual property,
his actions can only be fairly interpreted as targeted to harm Brink's.
See, e.g., GPG Prods. Corp.
v. Pegasus Luggage, Inc., 776 F.2d 1007 (Fed. Cir. 1985) (holding
defendant's patent
infringement willful when the defendant was informed of his
infringement, was given a copy of
the patent, took no affirmative steps to ascertain whether he infringed,
and deliberately
continued infringing).
'Even after getting this notice, at this pre-suit stage, Rojas went on
the offensive. Knowing that Brink's
installation and programming manuals contained trade secret information,
he threatened: "We will then
list the installation & programming manuals we have available as well."
Ex. C, ¶ 1.
4593685 - 5 -
Case 3:07-cv-00437 Document 31 Filed 10/02/2007 Page 6 of 11
B. Rojas Knew That Brink's Would Suffer The Brunt of Harm at Its Principal
Place of Business In Texas.
Because damage from intellectual property rights (such as Brink's
patent) occurs at the
location of the owner, Rojas must have known that Brink's would suffer
injuries at its principal
place of business in Texas. See Store Decor Div. of JAS Int'l, Inc. v.
Stylex Worldwide Indus.,
Ltd., 767 F. Supp. 181, 183 (N.D. III. 1991) ("an infringement of a
plaintiff's intellectual
property right, which right is by definition intangible, must, by
definition occur 'where the owner
suffers the damage', i.e. where the owner is located"). Similarly, in
its October 12, 2006 letter,
Brink's requested return of its physical proprietary programmers. Ex. D,
¶ 4. By not returning
these programmers to Brink's headquarters in Texas, Rojas knew he was
damaging Brink's at its
principal place of business.
Rojas knew that Brink's and its intellectual property were located in
Texas. He
expressed familiarity with Brink's business, including its website and
PSAs, even before Brink's
sent notice of his tortious conduct. See Ex. C. Brink's website lists as
contact information the
address of its corporate headquarters in Irving, Texas. Exhibit F.
Section 11 of the PSA also
provides Brink's address in Irving, Texas. Ex. A. Furthermore, Brink's
enjoys a high profile in
the industry and advertises extensively. Rojas must know that Brink's
principal place of
business is in Texas, especially in light of his expressed familiarity
with "dealers in the South,
like in Texas." Ex. C, ¶ 8.
By wrongfully selling Brink's equipment to Texas dealers and customers,
by using
converted Brink's programmers and the trade secrets they contain, and/or
by encouraging Brink's
customers to violate their PSA agreements with Brink's, Rojas would
necessarily damage Brink's
business in Texas. Rojas must have know that such actions would cause
harm in Texas.2
2 Also, Rojas apparently does significant business in Texas. See Ex. C,
¶ 8 (expressing familiarity with
practices of "many dealers in the South, like in Texas, Georgia, South
Carolina, Tennessee & Alabama").
4593685 - 6 -
Case 3:07-cv-00437 Document 31 Filed 10/02/2007 Page 7 of 11
C. Plaintiff Has Met Its Burden of Establishing a Prima Facie Case of
Specific
Personal Jurisdiction.
Under the Supreme Court's Calder "effects" test, specific personal
jurisdiction over Rojas
is proper in this case, because Rojas has purposefully directed
intentionally tortious conduct
toward Brink's in this forum, knowing that Brink's injury would be felt
in this forum. Brink's
claims that its intellectual property and other rights are violated by
Rojas' Internet offerings
available to Texas residents, and Brink's suffers harm in Texas from
Rojas' nationwide tortious
actions. But for Rojas' conduct directed toward Brink's, the injury to
Brink's in Texas would not
have occurred.
Brink's should not be required to go to Florida to seek relief from
Rojas when Rojas
knowingly caused injury in Texas. See Calder, 465 U.S. at 790. And under
the facts of this
case, Rojas should have anticipated being haled into court here. See Id.
In numerous cases, the
Calder effects test has been applied to find jurisdiction in a forum
when the defendant
committed a business tort, including trademark dilution, copyright
infringement, patent
infringement, and trade secret misappropriation, and knew that the
plaintiff was located in that
forum. See, e.g., Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316 (9th
Cir. 1998); Illustro Sys.
Int'l, LLC, 2007 WL 1321825 (N.D. Tex. May 4, 2007) (applying Caider to
find jurisdiction in
Texas when defendant allegedly committed copyright infringement and knew
that plaintiff was a
Texas entity); Amini Innovation Corp. v. JS Imports Inc., 497 F. Supp.
2d 1093 (C.D. Cal. 2007)
(finding jurisdiction under Calder when defendant allegedly willfully
infringed plaintiff's
copyrights and design patents and knew that plaintiff was located in the
forum); Precision Craft
Log Structures, Inc. v. Cabin Kit Co., 2006 WL 538819 (D. Idaho March 3,
2006) (finding
jurisdiction when the defendant allegedly committed copyright
infringement and knew the
plaintiff was located in the forum); 3D0 Co. v. Poptop Software, Inc.,
1998 U.S. Dist. LEXIS
21281 (N.D. Cal. Oct. 27, 1998) (finding jurisdiction when defendant
allegedly committed trade
4593685 - 7 -
Case 3:07-cv-00437 Document 31 Filed 10/02/2007 Page 8 of 11
secret misappropriation and should have known that their actions would
likely cause harm in
the forum).
Rojas' activities are similar to those of the defendant in Panavision.
In Panavision, the
court found jurisdiction proper under Colder when the defendant knew
about plaintiff
Panavision's trademarks, purposely registered domain names using those
trademarks, and
attempted to extort money from Panavision for use of the domain names.
Panavision, 141 F.3d
at 1319, 132 1-22. In finding jurisdiction, the court noted that
[Defendant] engaged in a scheme to register Panavision's trademarks as his
domain names for the purpose of extorting money from Panavision. His
conduct,
as he knew it likely would, had the effect of injuring Panavision in
California
where Panavision has its principal place of business and where the movie and
television industry is centered.
Id. at 1322.
Like Toeppen, Rojas has similarly engaged in activities that he knew
would damage an
intellectual property owner located elsewhere. Also like Toeppen, he
made threats to discourage
Brink's from enforcing its rights. Before this case was filed, in
response to Brink's first letter
notifying Rojas of its claims, Rojas threatened retaliation if Brink's
continued to pursue this
matter, stating, "We will then list the installation & programming
manuals we have available as
well." Ex. C. And again after Brink's filed its lawsuit, Rojas stated:
Since your client decided not to drop the case, I am going to publish this
information and make it available to any alarm dealer who wants it for
free. I will
also provide step by step instructions on how to change all the eprom
data to
include the dealer's own phone number, account number, report codes, zone
definitions, and how to alter the eprom to make the panel a local system.
Brink's Motion for Temporary Restraining Order, Docket #15, Exhibit A,
p. i0. Rojas has
made other threats directed to Brink's as well, including one to buy and
distribute counterfeit
Rojas does not appear to have given up on threats, even despite this
Court's injunction. Three days after
this Court's July 10, 2007 Temporary Restraining Order issued, he sent
an email, apparently renewing his
threat to post Brmk's trade secrets on the Internet: "All I can do is
just wait for them to get their
judgernent. That's when I will crack my knuckles, click send, and make
good on my promises..." Brink's
Response to Defendant's Motion to Dismiss, Docket #23, Exhibit C.
4593685 - 8 -
Case 3:07-cv-00437 Document 31 FHed 10/02/2007 Page 9 of 11
versions of the Brink's proprietary programmer. See Exhibit G. In short,
Rojas has directed
more activities and threats against Brink's than Toeppen directed
against Panavision, so his
activities clearly support jurisdiction under the Calder test.
If the Court feels that Gadder is not sufficient basis for jurisdiction
under the known facts
set forth above, Brink's requests that it be allowed discovery to
determine the extent of Rojas'
business in Texas.4 Rojas has indicated he does business in Texas. See
Ex. C (stating his
familiarity with dealers in Texas). If discovery confirms that Rojas has
provided significant
products or services to Texas residents, then this fact in combination
with offering his products
and services through his interactive website available to Texas
residents would also support
specific personal jurisdiction. Zippo Mfg. Go. v. Zippo Dot Corn, Inc.,
952 F. Supp. 1119 (W.D.
Penn. 1997) (finding personal jurisdiction proper when defendant had an
interactive website and
conducted electronic commerce with residents of the forum).
II. THE EXERCISE OF PERSONAL JURISDICTION OVER ROJAS COMPORTS WITH
TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE
When minimum contacts are established, the defendant bears the burden to
make a
compelling case that assertion of jurisdiction is unfair and
unreasonable. Cent. Freight, 322 F.3d
at 384 (court to consider (1) the burden on the nonresident defendant
having to defend itself in
the forum; (2) the interests of the forum state in the case; (3) the
plaintiff's interest in obtaining
convenient and effective relief; (4) the interstate judicial system's
interest in the most efficient
resolution of controversies; and (5) the shared interests of the states
in furthering fundamental
social policies.).
A plaintiff bears the burden of proof for showing personal jurisdiction
and when an evidentiary hearing is
not held, as in this case, the plaintiff is only required to present a
prima facie case. Cent. Freight Lines,
Inc. v. APA Transport Corp., 322 F.3d 376, 380 (5th Cir. 2003). Any
uncontroverted allegations in the
complaint are taken as true and any confficts between facts submitted in
affidavits are resolved in favor of
the plaintiff. Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990).
Because Brink's has not had the
opportunity to take discovery due to Rojas' default, if the Court
believes jurisdiction is unclear, Brink's
requests the opportunity to take jurisdictional discovery.
4593685 - 9 -
Case 3:07-cv-00437 Document 31 Filed 10/02/2007 Page 10 of II
There is no overwhelming burden in requiring Rojas to defend his actions
concerning
Brink's in this court. Brink's has strong interest in resolving the
dispute in Texas because Rojas'
tortious acts injured it here. See Double G Energy, Inc. v. AT Gas
Gathering, Inc., No.
3:05CV0749-P, 2005 WL 1837953 at *6 (N.D. Tex. July 28, 2005). Texas has
an interest in
this case because it involves a Texas-based corporation that has been
injured. Id. Texas also has
an interest because this case involves the application of Texas common
and statutory laws. In
the Internet era, when a single person may use the tools of the Internet
to carry out and support
wide-ranging business activities (such as, for example, solicitation,
purchase and receipt of
Brink's owned equipment; sale and rental of Brink's-owned equipment;
lock- and code-breaking
services performed for dealers and consumers; and distribution of
copyrighted manuals), there is
a strong interest in asserting jurisdiction over the remote perpetrator
of such actions.
The judicial system's interest in having this suit resolved efficiently
also weighs in favor
of Texas. A Texas court will more efficiently apply Texas law; multiple
Brink's witnesses are
located here and only one apparent witness (Rojas) is a nonresident; and
Brink's is likely to have
numerous documents and physical evidence at its principal place of
business here. While Rojas
might be somewhat inconvenienced by defending this suit in Texas from
Florida, this
inconvenience is slight in light of the ease of airline travel and
electronic filing. (Any depositions
of Rojas, of course, will be taken in his home area.) Further, "once
minimum contacts are
established, the interests of the forum and the plaintiff justify even
large burdens on the
defendant." Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th Cir.
1999). Rojas cannot
make a compelling case that jurisdiction in this case would not be fair
and reasonable.
Conclusion
For the reasons set forth above, Brink's requests that the Court find
that it has personal
jurisdiction over Rojas, and set a hearing on Plaintiff's Motion for
Entry of Default Judgment.
4593685 - 10 -
Case 3:07-cv-00437 Document 31 Fi'ed 10/02/2007 Page 11 of 11
Respectfully submitted,
By: Is Mark SabJeipç
Mark Sableman
Dean L. Franklin
Timothy D. Krieger
THOMPSON COBURN LLP
One US Bank Plaza
St. Louis, MO 63101
(314) 552-6000
(314) 552-7000 (fax)
and
Christina I. Sookdeo
Texas Bar No. 24028001
Brink's Home Security, Inc.
8880 Esters Boulevard
Irving, TX 75063
(972) 871-3503
(972) 871-3366 (fax)
Attorneys for Plaintiff
Brink's Home Security, Inc.
Certificate of Service
I hereby certify that this document will be served upon Defendant Jim
Rojas by PDF
email (jrojas@xxxxxxxxxxxx) on October 2, 2007.
Is! Mark Sableman
4593685 - 11 -
Case 3:07-cv-00437 Document 31 2 Fed 10/02/2007 Page 1 of 2
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THIS AGREEMENT CONSISTS OF SECTIONS 1 ThROUGH 12 APPEARING ON THE FRONT
ANDREVERSE SIDE.
YOU ACKNOWLEDGE THAT PRIOR To SIGNING THIS AGREEMENT YOU RECEIVED, READ
AND UNDERSTOOD
A LEGIBLE. EXACT AND COMPI,ETELY.Ffl.LED-IN COPY OF THIS AGREEMENT
[INCLUDING THE DOCUMENTS
LISTED IN SECTION 12(3)] AND THAT UPON SIGNING SUCH COPY WAS ALSO SIGNED
BY BRINK'S. YOU
FURTHER ACKNOWLEDGE THAT YOU UNDERSTAND SECTION 7 WHICH LIMITS BRINK'S
LIABILITY AND THAT
YOU MAY INCREASE BRINK'S LJMITATIONOF LIABILITY BY PAYING AN ADDITIONAL
CHARGE TO BRINK'S.
S1g0051011 YOUR RIGHT To CANCEL
YOU MAY CANCEL THIS TRANSACTION AT ANY
CUSTOMER. . .... .. . .. _,,___. TIME PRIOR TO MIDNIGHT OF THE THIRD BUS!-
NESS DAY AFTER THE DATE OF THIS TRANSAC'
CUSTO0)ER: -. ? ,,... TION. PLEASE SEE THE ATTACHED NOT1CE OF
CANCELLATION FORM FOR AN EXPLANATION OF
SATE.' , _._._..__-.._ ....__ THIS RIGHT.
(910100 10111 1111111. ely. 11010)

Case 3:07-cv-00437 Document 31-3 Filed 10/02/2007 Page 1 of 3
T H 0 M P S 0 N C 0 B U R N Thompson Coburn LLP
Attorneys at Law
One US Bank Plaza
St. Louis, Missouri 63101
314-552-6000
FAX 314-552-7000
www. thornpsoncobu.rm corn
Dean Franklin
314 552-6038
dfranklfri@
thornpsoncoburn.cOm
September 6, 2006
Via EMAIL (jrojastechman.com), FACSIMILE #813/888-8794
and FEDERAL EXPRESS
Mr. Jim Rojas
8002 Cornwall Lane
Tampa, FL 33615-4606
Re: Tech-man.com
Dear Mr. Rojas:
This firm represents Brink's Home Security, Inc. ("Brink's"). Brink's
supplies home security equipment
and services to homeowners across the nation.
It has come to the attention of Brink's that persons using the website
address www.tech-rnan.com, who
we believe to be you, have recently offered the following services and
products:
1. Copies of manuals for sale, including:
BHS-l000 Quick Reference Guide
BHS-1200 Keypad User Manual
BHS-1202 & BHS-2000 LCD Keypad User Manual
BHS-2000 Quick Reference Guide
BHS-2000 User Manual
BHS-2000A Quick Reference Guide
BHS-2000B User Manual
BHS-3000A LED Keypad User Manual
BHS-3000A Quick Reference Guide
BHS-3000C User Manual
2. Rental of programmers, including:
Brinks BHS 1000 & BHS2000 Plug In Programmer
Brinks BHS3000 Plug In Programmer
3. Encouraging and facilitating the removal and modification of Brink's
panels.
34210B4
rBIT
Case 3:07-cv-00437 Document 31-3 Filed 10/02/2007 Page 2 of 3
September 6, 2006
Page 2 of 3
Please be advised that Brink's services are usually provided to
customers under a standard 'Protective
Service Agreement" ("PSA"), a copy of which is enclosed herewith. The
PSA specifically provides in
section 5, concerning "OWNERSHIP AND USE OF PROTECTIVE EQUIPMENT", as
follows:
(a) YOU AGREE THAT BRINK'S IS THE OWNER OF THE PROTECTIVE
EQUIPMENT AT ALL TIMES. You agree that this Agreement is not a lease.
You will
not attempt to remove or sell any of the Protective Equipment. You agree
that installation
of the Protective Equipment does not create a fixture toyo premises.
(c) * ** you will not allow alteration of the Protective Equipment
except in a manner
approved in writing by Brink's.
Accordingly, Brink's customers who are subject to a PSA may not legally
alter the Brink's system
unilaterally, and any sales of instructions, devices and materials which
are desied to be used in
connection with such alterations would constitute an attempt to induce
the consumer to violate the
applicable PSA.
It appears from your website that your services are being offered to
allow access such that copyrighted
software programs could be copied and facilitate the alteration and
reprogramming of Brink's systems.
Such alterations may permit the buyer to reactivate deactivated security
systems which belong to Brink's,
or take other actions which would violate the homeowner's contract with
Brink's, violate Brink's rights
under the U.S. Copyright Act including the Anti-Circumvention Provisions
of the Digital MiUennium
Copyright Act and/or modify Brink's systems in a manner that might
interfere with its operation or
endanger the residents by preventing adequate security operations.
Furthermore, any commercial downloading and copying of Brink's manuals
is likety a direct violation of
the Copyright Act.
Additionally, the chips that you offer to reprogram contain copyrighted
software of Brink's or its vendors.
Brink's believes that any reproduction of such software, such as copying
into Random Access Memory,
constitutes an infringement of its rights as copyright owner. See M41
Systems Corp. v. Peak Computer.
Inc., 991 F.2d 511 (9th Cu. 1993). The programming on the microchip is
protected by a lockout key, and
your instructions and methods for circumventing that lockout key
constitute violations of section 1201 of
the Copyright Act, 17 U.S.C. § 1201, which prohibits the sale or
disfribution of anti-circumvent on
technology. These copyright infringement and anti-circumvention
violations are totally independent of
the PSA. Please be advised that the penalties under the Copyright Act
for both copyright infringement
and trafficking in anti-circumvention technology can be severe including
injunctions, statutory damages,
and enhanced damages in the event of willful conduct.
Because microchips and other security equipment subject to the standard
Brink's PSA constitute the
property of Brink's, any tampering with such materials, or the
encouragement thereof, may also constitute
trespass to chattels under state law.
Finally, Brink's may have claims for trade secret infringement and other
related claims based on the
offering for sale and sale of your services and products and the
inducement and instructions connected
with such sales.
3421084
Case 3:07-cv-00437 Document 31-3 Filed 10/02/2007 Page 3 of 3
September 6, 2006
Page 3 of 3
For all of the reasons set forth above, Brink's demands that you:
(a) immediately withdraw your offers to copy Brink's manuals, rent
Brink's programmers or
modify Brink's panels;
(b) immediately withdraw any other offerings in any retail, auction or
other forum of any
Brink's security panels, programmers, instructions or inducements
relating to changing, altering,
circumventing or otherwise taking unauthorized actions with respect to
Brink's equipment;
(c) agree in writing that you will permanently cease all such
activities, and will not engage in
them in the future;
(d) identify all persons to whom you have rented or sold your services
or any materials
relating to changing, altering, circumventing or otherwise taking
unauthorized actions with
respect to Brink's equipment;
(e) disgorge to Brink's all revenue obtained from any past sales related
to these services or
any materials relating to changing, altering, circumventing or otherwise
taking unauthorized
actions with respect to Brink's equipment together with an agreed
penalty of equai size; and
(1) provide such further assurances of past, present and future legal
compliance as Brink's
may require based on its investigation which is currently ongoing.
Please be advised that Brink's regularly and vigorously enforces its
intellectual property and other
property rights. Brink's does not and will not tolerate infringing
activities and attempts to induce others
to breach its contracts, destroy its property or infringe its rights.
Please notify me on or before the close of business on September 13,
2006 whether you will comply with
Brink's demands. We look forward to hearing from you or your counsel.
Very truly yours,
THOMPSON COBURN LLP
By
Dean L. Franklin
DLF/jar
Enclosure
3421084
Case 3:07-cv-00437 Document 31-4 Filed 10/02/2007 Page 1 of 1
From: Jim Rojas [jrojastech-man.COmJ
Sent: Wednesday, September 06, 2006 6:03 PM
To: Reitenbach, JoAnn
Subject: Re: Brinks manuals, etc.
1. All of the manuals we list on our website are available freely to all
on Brinks website. We could have easily added all the
installation & programming manuals, but we do not wish to make them
available to the general public. If you wish for us to
remove public access to these manuals, we will do so. However, we will
not stop listing them. We will then list the installation &
programming manuals we have available as well.
2. Even though Brinks maintains they own their security systems at all
times, 99 percent of the time, Brinks chooses to abandon
it. Legally after 30 days after cancellation, the customer may dispose
or do what they want with the system, no matter what your
contract states. Most choose to sell or give them to us for other
equipment or services we provide.
3. We purchased most of our Brinks programmers on eBay. In the past 6
years, we purchased 40 or more Brinks programmers.
If that is a problem, you might want to contact eBay. Other programmers
and equipment have come in the mail with nothing
more than a note stating "I think you can use this'. It may well be
ex-Brinks employees, we have no way to verify this. We also
don't keep records of donations that come in from the general public. We
generally accept 10-25 large packages per week. Out
of all those, maybe 2 boxes contain a great deal of Brinks equipment. A
few weeks ago we receive a single box of over 75
Brinks keypads and equipment of all kinds.
4. We only rent or sell our programmers to license alarm companies.
There are no exceptions. Customers may send in their
abandoned boards for us to reprogram. We just shutdown the communicator
and change the user codes so the customer may
have a functional system again. If Brinks has a problem with this,
redesign the obsolete technology. Even the newer BHS-30000
are easy to reprogram. Also make sure Brinks removes the systems before
the 30 day deadline after the customer cancels their
contract, or moves into their new home. I am under no obligation to
follow your client's contract limitations. ADT tried to pull the
same thing.. guess what happened? Yep, you guessed it...ADT lost their case.
5. We have received dozens of reports & emails from dealers all over the
USA that Brinks is installing these systems in brand
new homes & apartments. Since the customer never signed a contract for
monitoring at closing or even afterwards, they aren't
bound by anything your contract may or may not imply. Therefore the
homeowner is also free to abandon or do what they will
with the Brinks system.
6. There is a person on eBay that does provide the unlocking, and
programming of the Brinks eprom chipsto the general
public.. .our policy stickly forbids this. We never make public any
company's lockout codes, receiver numbers, callback numbers,
or any other proprietary information programmed into their systems.
There are no exceptions to this policy as well.
7. Alarm dealers all over the USA send us abandoned Brinks systems by
the box full. If Brinks wishes to purchase them all back,
we have no problem letting them doing so. We currently have several
hundred boards, keypads, hardwired and wireless
expanders of all kinds in stock at all times.
8. Many dealers in the South, like in Texas, Georgia, South Carolina,
Tennessee & Alabama use Brinks systems as their
primary panel because of the abUndance of abandoned Brinks systems they
run into on takeovers. Brinks is well aware of what
is going on out there when it comes to their equipment. With many more
online alarm companies offering monitoring for as little
as $8.95 per month, it is only the beginning...
Thank you
Jim Rojas
EXHIBIT IC
Case 3:07-cv-00437 Document 31-5 Filed 10/02/2007 Page 1 of 3
T H 0 M P S 0 N C 0 B U R N Thompson Cobuzn LLP
Attorneys at Law
One US Bank Plaza
St. Louis, Missouri 63101
314-552-6000
M.X 314-552-7000
www.thampsoncoburn.com
Mark Sableman
314-552-6103
FAX 314-552-7103
EMAiL msab1enan@
thompsoncobum.com
October 12, 2006
Via EMAIL (rojas@xxxxxxxxxxxx), FACSIMILE #813/888-8794
and UPS
Mr. Jim Rojas
8002 Cornwall Lane
Tampa, FL 33615-4606
Re: Various infringement claims; Our Ref: 7498-54476
Dear Mr. Roas:
I am responding on behalf of Brink's and my partner Dean Franklin to the
emails you sent to
Mr. Franklin on September 6, 2006, in response to his letter of that
date. While we appreciate
your timely response to Mr. Franklin's letter, and while we now better
understand your
position, significant issues remain.
First, your suggestion that Brink's has "abandoned" its security systems
is not correct. When a
residential homeowner goes to Brink's and. asks Brink's to install a
security system., Brink's
does so under contractual terms and conditions (which have been provided
to you) which
expressly provide that Brink's retains ownership of the security system
equipment. If and
when the Brink's customer chooses to discontinue Brink's monitoring
services, the customer is
given a choice of having the security system remain in the house, where
it may be seen by a
subsequent purchaser as adding value to the house, or it may be removed.
Most homeowners
in this situation choose to have the system equipment remain installed
because of the obvious
benefit in the event of a home sale or the customef s decision to resume
Brink's monitoring
services. In any event, the equipment remains the property of Brink's;
you cannot obtain good
title to this equipment even if you have paid for it. While you may not
have known these facts
before, the contract that Mr. Franklin provided to you makes that clear.
Now that all the facts
have been clearly provided to you, you no longer have an excuse of
reasonable basis for
believing that unused Brinks' security system equipment was "abandoned"
simply because it
was no longer being utilized as part of an active Brink's monitoring
security service.
In some cases, Brink's does install systems in brand. new homes or
apartments prior to any
Brink's monitoring service contract, and in that case, as you noted in
point 5 of your email, the
situation is somewhat different from the ordinary situation. However, if
you have any control
3439738
Case 3:07-cv-00437 Document 31-5 Filed 10/02/2007 Page 2 of 3
Mr. lim Rojas
October 12, 2006
Page 2 of 3
panels which say "this control panel . -. is the property of Brink's
Home Security" or similar
language, then it is very clear that the panel was not used in new
construction. This is not to
say that any panel without this label is not owned by Brink's, as we
suspect the label is often
removed by those who attempt to wrongfully sell Brink's equipment.
Additionally, because the
systems that are installed in new construction are owned by the
homeowner, it is rare that they
are removed from these homes. We therefore believe a very low
percentage, if any, of the
Brink's panels in your possession came from new construction.
Second, cny and all of the Brink's progrrn'mers that you have in your
possession are Brink's
property. The programmers are manufactured and progrnmed for use solely
by Brink's to
program Brink's secuñty systems. The manufacturer sells them exclusively
to Brink's.
Brink's does not sell, abandon, release, or otherwise distribute any of
its progrpmmers. It is
possible that former Brink's technicians have at times not returned
progrrnmers in their
possession to Brink's at the conclusion of their employment, but if this
is so, any such
continued possession of the programmers or any sale or distribution of
the programmers by
those former employees was unauthorized by Brink's. Similarly, Brink's
programmers may
have at times been lost or misplaced, but as I am sure you know, it is a
basic legal principle
that in the case of lost property, the original owner has superior
rights to any later findei. In
short, you have no right to possess, claim ownership of, sell, or
distribute Brink's programmers,
regardless of whether you acquired the programmer on eBay, by donation,
or in any other
manner. Any such Brink's progrirrners that have come into your
possession are stolen or
misplaced property of Brink's. Brink's hereby notifies you explicitly
that you have no rights to
these programmers, and Brink's requests that you return any such
programmers currently in
your possession to Brink's, and cease all purchases, sales and
ditribution of such devices,
Third, it appears clear from your website that you promote, aid, and
abet the circumvention of
lock-out codes that protect the software resident on Brink's home
security systems. Because
the lock-out codes are circumvented in connection 'with reprogrrnm ing
activities which
involve copying or adapting the programs that Brink's has put on the
system, the
circumvention of these codes clearly aids in the infringement of
copyrighted material. This
constitutes a violation of one or more subsections of section 1201 of
the Digital Mifienium
Copyright Act (17 U.S.C. § 1201), including the prohibition on the
distribution of equipment
designed to aid such circumvention. Under the Copyright Act, this is an
action wrong in arid
of itself, without regard to whether you or others actually carry out
the circumvention. See 17
U.S.C. § 120 l(a)(2) (prohibiting trafficking and anti-circumvention
technology). It is important
to note that these violations are completely separate from and in
addition to any inducement of
a breach of Brink's customer contracts.
Fourth, in addition, the selling of components of the Brink's security
systems and the
reprogramming of the Brink's boards may constitute a violation of
Brink's patent rights, to the
extent that you resell or reprogram components for use in a security
system that infringes the
claims of U.S. Patent No. 5,805,064. Please refer to U.S. Patent No.
5,805,064, a copy of
which is enclosed with this letter, to see the exact scope of Brink's
patent rights in this regard.
As you know, the United States patent law prohibits unauthorized persons
from making, using,
3439738
Case 3:07-cv-00437 Document 31-5 Filed 10/02/2007 Page 3 of 3
Mr. Jim Rojas
October 12, 2006
Page 3 of 3
or selling patented equipment or practicing patented processes such as
the one described in the
Brink's patent. Your activity in reselling or reprogrpmming Brink's
equipment may induce
others to infringe Brink's patent rights. Under the law, one who
actively induces infringement
of a patent or offers to sell or sells a component of a patented system
may also be liable as an
infringer. See 35 U.S.C. § 271.
Fifth, with respect to the Brink's manuals that you have made available
for downloading from
your web site, it is a violation of the Copyright Act to distribute
Brink's manuals without
authorization. The Copyright Act provides Brink's with the exclusive
right to reproduce its
copyrighted works, prepare derivative works, or distribute copies of its
works to the public. See
17 U.S.C. § 106. While Brink's in the past made user manuals available
on the mybrinks.com
website for use by authorized Brink's customers, it never gave explicit
or implicit permission
for you or others who were not Brink's system customers, but rather who
are misusing Brink's
equipment, to distribute the manuals. Moreover, the Brink's user manuals
are no longer
publicly available, as access to the portion of the mybrin.ks.com
website where these manuals
are posted is currently password protected. Accordingly, Brink's again
requests that you
immediately remove all Brink's manuals from your public web site and
otherwise cease
unauthorized distribution of them. Additionally, the Brink's
installation manuals were never,
and currently are not, made available to the public in any manner.
Dissemination of these
manuals in any manner constitutes copyright infringement and may as well
constitute trade
secret misappropriation.
For all of these reasons, and the reasons set forth in Mr. Franklin's
original letter, Brink's
believes it is clear that the products and services sold on your website
violate Brink's
intellectual property rights, and constitute tortious wrongs that have
damaged Brink's business.
We again request that you promptly agree to discontinue all such
activities. Please advise me
on or before October 26, 2006 whether you will do so, or whether it will
be necessary for
Brink's to take farther action to enforce its rights. I look forward to
hearing from you or your
counsel.
Very truly yours,
THOMPSON COBURN LLP
By
Mark Sableman
MS/be
Ericlosu.re
cc: Mr. Chris Cage
Mr. Dean Franklin
343 9738
Case 3:07-cv-00437 Document 31-6 Filed 10/02/2007 Page 1 of I
From: Jim Rojas [mailto:jrojas@xxxxxxxxxxxx]
Sent: Thursday, October 12, 2006 1:44 PM
To: Sableman, Mark
Subject: Re: Brink's -- various infrigement daims
It appears that no matter how I respond to this letter, you will reply
with more legal double
talk. have no further interest in hearing what you, or your client have
to say in regards to the
equipment, programmers, or programming of abandoned Brinks systems.
will continue to buy, sell, or trade Brinks parts, programmers &
accessories, as it becomes
available on the internet, or mailed to me. You are welcome to try to
prevent this, but you and
I know what the chances are of that happening.
If you insist on pressing this issue, I will make both letters you have
sent to me public
information for all the security industry to view, including end users
that use my website. This
includes all alarm forums & newsgroups. Don't be surprised if it causes
your client to lose
some customers, or even a spotlight in Mr. Kirshbaum's legal column. The
internet is a
wonderful thing...
Have a pleasant weekend.
Jim Rojas
EXHIBIT
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Case 3:07-cv-00437 Document 31-8 Filed 10/02/2007 Page 1 of 1
Sablemai, Mark
From: Jim Rojas Uroias@tech-man .com]
Sent: Thursday, May 24, 2007 12:22 PM
To: Sableman, Mark
Cc: Franklin, Dean; Reitenbach, JoAnn
Subject: Re: Brinks Programmer Part 2
I have been doing some further research. According to my Taiwan trade
contact, the China
based manufacturer of this S3121 programmer still has many of them left
for sale. I just
ordered a hundred of them at $22USD each.
I think your client opened a huge can of worms here. Maybe your client
should take this
opportunity to have Honeywell design an entirely new panel line. Their
latest BHS4000C is
very easy to reprogram. You don't even need a progranhxuer. We figured
out how to do it
across the datahus.
Sorry about that.
God Bless america
Jim Rojas
Jim Rojas wrote:
 > I thought this programmer was made exclusively for Brinks? I guess no
 > one told this to Intellisense (Honeywell) . It seems they have it
 > listed as the Eclipse model # S3121 on it. . .1 wonder if Judge Jane J
 > Boyle is aware of this undisclosed fact.. .oops. Please feel free to
 > enter this email as further evidence of your client's bogus claims
 > against me. I am attaching some pictures in case your legal aides need
 > a visual reference.
 >
 > Ebay Item # 180121496748
 >
 > http://cgi.ebay.com/ws/eBayISAPI.dll?Viewltem&item=180121496748
 >
 > Better luck next time!
 >
 > Jim Rojas
 >
 >
 >
 > ??
 >
 >
 >
 >
 >
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