UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

COLUMBIA DATA PRODUCTS, INC., Plaintiff, v. AUTONOMY CORPORATION PLC., IRON MOUNTAIN, INC., IRON MOUNTAIN INFORMATION MANAGEMENT, INC., AND CONNECTED CORP., Defendants. COMPLAINT AND JURY DEMAND Plaintiff, Columbia Data Products, Inc. (CDP) hereby brings this Complaint against Autonomy Corporation plc (Autonomy), Iron Mountain, Inc. Iron Mountain Information Management, Inc., and Connected Corporation (Connected) as follows: Nature of Action 1. By this action, CDP seeks redress for the wrongful copying and shipment by CIVIL ACTION NO. ___________

Defendants of CDPs Software, Defendants breaches of a software license agreement and the implied covenant of good faith associated therewith, and Defendants misrepresentations directed to hiding and obscuring Defendants copyright infringement and breaches of contract. Parties 2. CDP is a Florida corporation with its principal place of business in Altamonte

Springs, Florida. 3. Autonomy is a corporation under the laws of the United Kingdom with a principal

place of business in California.

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4.

Iron Mountain, Inc. and Iron Mountain Information Management, Inc.

(collectively, Iron Mountain) are Delaware corporations with their principal places of business in Boston, Massachusetts. 5. Connected is a Delaware corporation with a principal place of business in

Framingham, Massachusetts. Jurisdiction 6. This Court has subject matter jurisdiction over this Complaint pursuant to 28

U.S.C. 1331 and 1367. CDPs copyright infringement claim presents a federal question and its state law claims are part of the same case and controversy. Jurisdiction would also be proper pursuant to 28 U.S.C. 1332, as the citizenship of the parties is completely diverse and the amount in controversy, exclusive of interest and costs, exceeds $75,000. 7. Venue is proper under U.S.C. 1391(a)(1), (2). The Businesses of the Parties 8. CDP is in the business of developing, marketing, distributing and supporting

certain computer software products. CDPs computer software products include software to enable various computers and related devices, such as servers and workstations, to be backed-up by other Original Equipment Manufacturers (OEMs) backup software in real time, to ensure that work being performed in open files, (that are in-use, and being changed by users during the backup). Without CDPs software, these open files backed up would be corrupt or skipped. So the most important files a user has, the files that are being used, would not be backed up, destroying much of the value of the OEMs backup software. 9. CDP has licensed its open file back-up software product to leading OEMs,

including HP, Microsoft, IBM, Veritas, and Dell. 2

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10.

At all times relevant hereto, at least through May 2011, Iron Mountain has

marketed, distributed and supported digital back-up products. These products have incorporated functionality allowing for the real time back-up of work being performed in open files. 11. Certain of the software licenses by Iron Mountain to its customers came from

third party providers. In certain instances, such software was licensed through Iron Mountains wholly owned subsidiary Connected. The License Agreement 12. On or about March 14, 2005, CDP and Connected entered into an OEM Partner

Agreement (the License Agreement). The License Agreement was executed by Iron Mountain through its Executive Vice President of the Iron Mountain Digital Business Unit. Iron Mountain is the successor-in-interest to the rights and obligations of Connected under the License Agreement. 13. The License Agreement allowed Connected and Iron Mountain as successor to

Connected to integrate, market and distribute certain CDP Software products. Those products were CDPs Persistent Storage Manager and a documented COM+ interface (CDP Software). 14. Such license, however, expressly provided limitations on the rights of the

licensees. One such limitation was that licensees could only incorporate CDP Software with the SV server product listed in Approved Products, Exhibit B of the License Agreement. 15. The License Agreement provided a means for Connected to add products to

Exhibit B, whereby Connected would submit products to CDP that were integrated with CDPs products for testing, after which, solely upon CDPs approval would then be added to the Approved Products in Exhibit B,

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16.

The License Agreement also expressly provided that licensor would pay CDP

royalties of ten percent (10%) of the net licensing, service, maintenance, and subscription revenue received by licenses for each server product containing CDP Software. Net revenue was defined in the License Agreement as gross revenue less the customer discount (net invoiced amount) received for the OEM Partners server products, reduced by any product returns, and exclusive of all taxes (sales and use tax, VAT, GST, HST). The royalties to be paid to CDP expressly included a fee of ten percent (10%) of the monthly net revenue received for maintenance, services and subscription contracts. All such royalty amounts were to be reported within 30 days of the end of each calendar quarter and paid within 30 days of invoicing. 17. On information and belief, Iron Mountain created, marketed and shipped software

products incorporating CDP Software. On information and belief, Autonomy succeeded to the obligations of Connected and Iron Mountain when Autonomy purchased the assets of Iron Mountains Digital Business unit. Defendants Autonomy, Iron Mountain and Connected are referred to collectively as Defendants. COUNT I (Copyright Infringement) 18. Plaintiff realleges and incorporates herein each of the allegations set forth in

paragraphs 1 through __ above as it fully restated here. 19. CDP has all rights to and interest in federally registered United States copyrights

covering CDP Software, including the copyright No. TX0005746750. CDP copyright is valid and enforceable. 20. CDP is informed and believes that Defendants, their employees and their agents

copied and/or used copies of the CDP Software in violation of the License Agreement. 4
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21.

Defendants unlicensed use and copying of the CDP Software constitutes

infringement of CDPs registered copyright covering the CDP Software pursuant to 17 U.S.C. 106. 22. CDP is informed and believes that Defendants past and ongoing infringement

was knowing and willful. 23. In light of Defendants ongoing knowing and willful infringement of CDPs

copyright, CDP is entitled to injunctive relief pursuant to 17 U.S.C. 502 as well as its actual damages suffered as a result of the infringement and any profits of Defendants that are attributable to the infringement and not taken into account in computing actual damages, pursuant to 17 U.S.C. 504. The amount of damages to which CDP is entitled is to be determined at trial, but is not less than $23 million. COUNT II (Breach of Contract) 24. Plaintiff realleges and incorporates herein each of the allegations set forth in

paragraphs 1 through __ above as it fully restated here. 25. Defendants have licensed and received revenue from Defendants products

incorporating CDP Software. 26. Defendants did not report such revenue in a timely fashion as required by the

License Agreement. 27. Defendants incorporated CDPs software into additional products that were not

included in the Approved Products under Exhibit B, without the knowledge or consent of CDP. Such additional products with CDPs software were provided to customers, Defendants

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received additional revenue from these products, and Defendants neither reported nor paid these royalties that were due to CDP. 28. After repeated demands by CDP, Defendants finally purported to report revenues

received from products licensed by Defendants incorporating CDP Software. Defendants reported that the amount due was $163,472.90. 29. Upon CDPs review of the belated report begrudgingly provided by Defendants,

CDP questioned the accuracy of the report and exercised its right under the License Agreement to audit Defendants books and records. 30. CDP retained the independent accounting firm of PriceWaterhouseCoopers LLC

(PWC) to perform the royalty audit of Defendants records. 31. After a detailed review of the records made available by Defendants and

interviews of Iron Mountain personnel, PWC determined the estimated royalties due to be in excess of $23 million. This amount is over 140 times the royalty reported by Defendants. 32. Defendants have paid no royalties as called for in the License Agreement to CDP.

Defendants have neither paid the $23 million due pursuant to the PWC report nor $163,472.90 Defendants admit is due CDP. 33. The License Agreement also provides that if the underpayment is more than 5%

for three consecutive calendar quarters, Defendants shall pay all costs of performing the audit. 34. Having paid no royalties for any quarters, Defendants underpayments have been

more than 5% for more than three consecutive quarters. This is true under either royalty calculation.

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35.

CDP has requested Defendants payment of all costs of performing the audit as

provided for in the License Agreement. Defendants have refused and failed to make such payment. 36. CDP fulfilled all of its obligations under the License Agreement before

Defendants material breaches. 37. CDP has suffered damages as a direct result of Defendants breaches. COUNT III (Breach of the Implied Covenant of Good Faith and Fair Dealing) 38. Plaintiff realleges and incorporates herein each of the allegations set forth in

paragraphs 1 through __ above as it fully restated here. 39. In addition to the express obligations contained in the License Agreement, there

exists an implied covenant of good faith and fair dealing in the License Agreement. 40. 41. Defendants conduct materially breached that implied covenant. CDP fulfilled all of its obligations under the implied covenant before Defendants

material breaches. 42. CDP has suffered damages as a direct result of Defendants breaches. COUNT IV (Unfair and Deceptive Trade Practices) 43. Plaintiff realleges and incorporates herein each of the allegations set forth in

paragraphs 1 through __ above as it fully restated here. 44. At all relevant times herein, the parties were acting in trade or commerce, as that

term is construed in Chapter 93A. 45. Defendants conduct constitutes one or more unfair and deceptive acts in violation

of Chapter 93A, 2 and 11. 7

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46. 47.

Defendants conduct was done primarily and substantially in the Commonwealth. In addition to breaching the License Agreement and the implied covenant of good

faith and fair dealing, Defendants have repeatedly and intentionally misrepresented facts in an attempt to deceive CDP as to the royalties due under the License Agreement. 48. Specifically in 2008, after CDP repeatedly tried to get information from

Connecteds product managers and accounting with no success, Defendants internal counsel Sharon Gardner reported that, The Connected Server product was not a success; LiveVault [another Iron Mountain subsidiary that was also licensing CDPs software], took over as the Server product when Iron Mtn acquired Connected in December of 2005. CDP relied on these statements and believed that either there were no royalties to report, or the royalties were moved and reported to us in our Live Vault royalty reports and payments. 49. In the spring of 2010, when CDP saw for the first time that Defendants

documentation showed installation of CDPs software, CDP contacted Defendants accounting department again, but CDPs requests were rebuffed and they would not respond. 50. In the summer of 2010, CDP appealed to the president of Iron Mountain, who

launched an investigation and found that they did indeed ship CDPs software, but only on a few servers. 51. A royalty report was prepared and sent with a request for a full release from CDP,

showing $163,472.90 in back royalties for the SV Server product. But even this report was still missing any subscription revenue for this product. 52. In September, 2010, CDP was told that the VP of software engineering confirmed

that the PSM code was only used and deployed for servers. CDP was told CDPs software was

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never used or shipped with non-server workstations, despite the fact that Defendants literature indicated that CDPs software was specifically used in workstations. 53. By December 2010, CDP asked again to check the workstation backup software

to see if it would operate with CDPs software as CDPs testing had confirmed. This time, Defendants confirmed that all of Defendants Windows products for servers and workstations were indeed coded to use CDPs software. But, CDP was also told that despite the fact that all products had used and included CDPs COM+ interface, there was a missing piece of CDPs software that would prevent the use of CDPs software. And, then Defendants misleadingly added: After all, if the customer couldnt obtain CDPs missing piece of software, they couldnt use CDPs software. So, how would a customer obtain CDPs missing piece of software? Six months later, CDP learned that Defendants already knew the answer to their own misleading question. 54. In June 2011, PriceWaterhouses interview with, Bob Mulcahey, Defendants

Director of Engineering, finally disclosed that CDPs missing piece of software was shipped to all of Defendants licensed server and PC customers on a CD by Defendants. So any customer could simply copy CDPs missing file onto any PC or server, simply install it, and then all of the Defendants software would automatically use CDPs open file software with no restrictions and no protections of any kind whatsoever for CDPs software. 55. Even today, Defendants claim that there is a mysterious key scheme required,

or CDPs software will not work, even though they have finally acknowledged that CDPs software was embedded in all of Defendants software and the missing pieces were also made readily available by all customers, and that the combination would work automatically for all customers. 9
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56.

To date, Defendants have declined to describe in any meaningful way how this

key scheme would work, or who this key was provided to. Defendants have also declined to deliver their software to CDP as required by the License Agreement, which CDP could then test this key scheme, and could prove Defendants specious claims that they protected CDPs software. 57. Defendants repeatedly denied that they had shipped CDP Software to customers

beyond the scope allowed under the License Agreement. Defendants repeatedly falsely claimed that they had only shipped CDP Software to server customers of Defendants. Upon information and belief, those misrepresentatives were knowing and willful. 58. In fact, Defendants had shipped CDP Software to customers of products other

than server based products. For example, Defendants shipped CDP Software to substantial numbers of customers of Defendants PC based software products. 59. Once CDP uncovered Defendants misrepresentations and determined that

Defendants had shipped CDP Software beyond that allowed by the License Agreement, Defendants again knowingly misrepresented what had occurred. Rather than come clean about their actions, Defendants compounded their knowingly false statements by now falsely stating that CDP Software had been rendered inoperable in the shipments made by Defendants to their PC product customers. Further, despite repeated demands to send a copy of every version of software that incorporated CDPs products to CDP as required in the License Agreement, Defendants have never provided even a single copy of their software to CDP, so that CDP could determine the extent of Defendants continued use of CDPs software. Upon information and belief, such further misrepresentations were knowingly and willful.

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60.

CDP has suffered loss of money or property as a direct result of Defendants

unlawful conduct, which entitles CDP to damages and/or Defendants unlawful conduct will have the effect of causing such loss of money or property thereby entitling CDP to the injunctive relief it seeks in this action pursuant to Chapter 93A, 11. 61. Also, CDP will suffer immediate and irreparable harm should Defendants

unlawful conduct continue. DEMAND FOR RELIEF WHEREFORE, CDP prays for judgment against Defendants as follows: A. Software; B. C. D. interest; E. Up to treble damages for willful or knowing violation of Chapter 93A, 2, and Actual damages of not less than $23 million; Statutory damages from Defendants copyright infringement. A disgorgement of Defendants profits from their copyright infringement, and An injunction barring Defendants from marketing, distributing or supporting CDP

awarding CDP its costs, and attorneys fees pursuant to Chapter 93A; G. F. Costs of suit and attorneys fees, pursuant to 17 U.S.C. 505; and Such other relief as may be deemed just.

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JURY DEMAND CDP hereby demands a trial by jury on all issues and claims so triable. COLUMBIA DATA PRODUCTS, INC. By its attorneys,

/s/ Victor H. Polk, Jr. Victor H. Polk, Jr. (BBO #546099) James J. Nagelberg (BBO #675656) Greenberg Traurig LLP One International Place Boston, MA 02110 617-310-6000 polkv@gtlaw.com nagelbergj@gtlaw.com Dated: November 23, 2011

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