Case 5:17-cv-05129-TLB Document 6 Filed 07/13/17 Page 1 of 19 PageID #: 42
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF ARKANSAS
`FAYETTEVILLE DIVISION
`
`
`
`
`
`
`Case No. 5:17-cv-05129-TLB
`
`
`
`Plaintiff,
`
`DALE OLIVER
`
`
`
`v.
`
`BRUCE JOHANSON,
`BLAIR JOHANSON, and
`DB SQUARED, LLC
`
`
`Defendants.
`
`
`
`
`
`
`
`
`ANSWER
`
`* * *
`
`JURY TRIAL DEMANDED
`
`* * *
`
`
`
`
`
`Defendants Bruce Johanson, Blair Johanson, and DB Squared, LLC (“Defendants”) state:
`
`1.
`
`Plaintiff is a resident of Fayetteville, Washington County, Arkansas.
`
`Answer: Admitted.
`
`2.
`
`Defendants Bruce Johanson and Blair Johanson are residents of Fayetteville,
`
`Washington County, Arkansas (sometimes jointly referred to herein as the "Johansons"). They
`
`are twin brothers.
`
`Answer: Admitted.
`
`3.
`
`Defendant DB Squared, LLC is an Arkansas limited liability company doing
`
`business in Washington County, Arkansas. Oliver, Bruce Johanson and Blair Johanson are the
`
`

`

`Case 5:17-cv-05129-TLB Document 6 Filed 07/13/17 Page 2 of 19 PageID #: 43
`
`sole members of DB Squared, LLC.
`
`Answer: Denied. Oliver was a member until his complete and full resignation and
`dissociation from DB Squared, LLC in October 2016.
`
`
`The acts and omissions giving rise to Plaintiff's cause of action occurred in
`
`4.
`
`Washington County, Arkansas. This case involves a federal question under the United States
`
`Copyright Act, 17 U.S.C. §§ 101 et seq. (the "Copyright Act").
`
`Answer: Admitted.
`
`5.
`
`This Court has jurisdiction over the parties and subject matter hereof and venue
`
`lies properly herein.
`
`Answer: The Washington County, Arkansas Circuit Court does NOT have subject matter
`jurisdiction. See allegations by Plaintiff at Paragraph 4 of its original Complaint expressly
`invoking federal question jurisdiction. The United States District Court for the Western District
`of Arkansas does have proper subject matter jurisdiction. Personal jurisdiction of the parties is
`admitted.
`
`6.
`
`Oliver is a computer software engineer; he has over 35 years of experience in the
`
`technology and computer industry.

`
`Answer: Denied.
`
`7.
`
`In 2001, Oliver, acting as an independent contractor through his company Applied
`
`Computer Technology, Inc. ("ACT"), created and designed a computer software program known
`
`as "JESAP".

`
`Answer: Denied.
`
`8.
`
`Oliver, acting as an independent contractor through his company ACT, installed
`
`JESAP on two computers at Blair Johanson's business, Johanson Consulting, Inc. ("JCI"). Oliver,
`
`through ACT, also provided general technological consulting services to JCI, along with other
`
`companies.
`
`Answer: Denied.
`
`- 2 -
`
`

`

`Case 5:17-cv-05129-TLB Document 6 Filed 07/13/17 Page 3 of 19 PageID #: 44
`
`9.
`
`From 2001 to 2006, Oliver, acting as an independent contractor, made revisions to
`
`JESAP. Oliver made changes to JESAP in 2005 and 2006 to create a commercial version of
`
`JESAP.
`
`Answer: Denied.
`
`10.
`
`Oliver filed an application with the U.S. Copyright Office for copyright
`
`registration of the JESAP code and screen displays. Oliver listed himself as an author and DB
`
`Squared, LLC as the claimant.
`
`Answer: Denied.
`
`11.
`
`Prior to registration, the Copyright Office examiner for the copyright application
`
`contacted Oliver to clarify whether the ownership of the JESAP program was a work for hire
`
`relationship. Oliver conferred with Blair Johanson and was instructed to inform the Copyright
`
`Office the JESAP program was "work for hire", although JESAP was not "work for hire"
`
`pursuant to the legal definition of that phrase under copyright law.
`
`Answer: Denied. Oliver did not confer with Johanson on this topic in the way it is
`described by this paragraph. The JESAP 2008 application was actually corrected by Oliver on
`behalf of DB Squared, LLC. Oliver’s historical statements to the Copyright Office confirm this
`to be true. It appears that Oliver claims his willingness to provide a material misrepresentation to
`the Copyright Office in hopes of securing a copyright registration.
`
`12.
`
`The JESAP program copyright was duly registered effective March 31, 2008 by
`
`the U.S. Copyright Office as evidenced by Certificate of Registration TX 6-942-486, a copy of
`
`which is attached as Exhibit A.
`
`Answer: Admitted, yet Exhibit A is not a Certificate of Registration for TX 6-942-486.
`Rather, it appears to be a screenshot of an electronic query of whether a registration exists. The
`registration did issue as a work for hire having ownership by DB Squared, LLC.
`
`13.
`
`Since 2008, Oliver has written new code and designed new screen displays for a
`
`new software program entitled DBCompensation (the "Software").
`
`- 3 -
`
`

`

`Case 5:17-cv-05129-TLB Document 6 Filed 07/13/17 Page 4 of 19 PageID #: 45
`
`Answer: Denied.
`
`14.
`
`In 2016, Oliver completed the Software.
`
`Answer: Denied.
`
`15.
`
`Oliver was the sole author of the Software within the meaning provided under 17
`
`U.S.C.§101.
`
`Answer: Denied.
`
`16.
`
`The Software is an original work within the meaning provided under 17 U.S.C. §
`
`101.
`
`Answer: Denied.
`
`17.
`
`Oliver was an independent contractor during the creation of the Software.
`
`Answer: Denied.
`
`18.
`
`At no time whatsoever did Oliver transfer any right or interest in the Software
`
`program to any of the Defendants, and he has always retained, among his other rights, all
`
`copyright protection associated therewith.

`
`Answer: Denied.
`
`19.
`
`No agreement, written or oral, was ever mentioned, made, or entered into between
`
`Oliver and the Defendants with respect to the transfer of copyright ownership in the Software.

`
`Answer: Denied insofar as it was a work for hire.
`
`20.
`
`On February 21, 2017, the DBCompensation program copyright was duly
`
`registered by the U.S. Copyright Office as evidenced by Certificate of Registration TX 8-299-
`
`255, a copy of which is attached as Exhibit B.

`
`Answer: Denied. Such registration would not have issued but for the material
`misrepresentations and omissions by Oliver to the Copyright Office as to authorship, ownership,
`and other considerations.
`
`- 4 -
`
`

`

`Case 5:17-cv-05129-TLB Document 6 Filed 07/13/17 Page 5 of 19 PageID #: 46
`
`
`21.
`
`Oliver is the owner of the copyright registration for the Software ("Copyright").
`
`Answer: Denied.
`
`22.
`
`As the owner of the Copyright, Oliver is entitled to all of the rights, benefits, and
`
`privileges afforded to an owner of the Copyright under the Copyright Act, including without
`
`limitation the right to reproduce the copyrighted work or distribute copies to the public by sale or
`
`other transfer.
`
`Answer: Denied.
`
`23.
`
`Defendants have wrongfully asserted rights in the Copyright. Defendants have
`
`made an explicit written claim to be owners of the Copyright.
`
`Answer: Admitted that Defendants claim ownership. Denied that such assertion of rights
`
`is wrongful.
`
`24.
`
`On December 23, 2004, Oliver, Bruce Johanson and Blair Johanson met to
`
`discuss forming a new company that would make JESAP commercially available to customers
`
`other than JCI. Oliver, Bruce, and Blair were to each own one-third of the new company. Bruce
`
`and Blair were to perform sales and customer contacts on behalf of the new company and Oliver
`
`would do all of the product development work. The new LLC was to be called DB Squared,
`
`LLC.
`
`Answer: Admitted as to the date of formation, but generally denied because this
`
`statement is an incomplete description of the agreements between Oliver and the Johansons.
`
`25.
`
`Articles of Organization were filed for DB Squared, LLC on March 15, 2005.
`
`Answer: Admitted.
`
`26.
`
`The Johansons did not hold up their end of the bargain. Instead of devoting time
`
`and effort into growing the business of DB Squared, LLC, the Johansons used JESAP and the
`
`- 5 -
`
`

`

`Case 5:17-cv-05129-TLB Document 6 Filed 07/13/17 Page 6 of 19 PageID #: 47
`
`Software to make money in their own consulting business thereby cutting Oliver out of the
`
`profits.
`
`Answer: Denied.
`
`27.
`
`Oliver devoted substantially all of his time to the development of DB Squared,
`
`LLC. However, with the Johansons diverting potential DB Squared, LLC customers to their own
`
`consulting company JCI, Oliver’s efforts were essentially for naught.
`
`Answer: Denied.
`
`28.
`
`Since the Johansons own the majority interest in DB Squared, LLC they control
`
`the company’s checkbook and refused to pay Oliver fair compensation for his work for the
`
`company. In 2016 Oliver was paid $27,000 plus a distribution of $10,000 for a total of
`
`$37,000.00.
`
`Answer: Denied.
`
`29.
`
`Because the Johansons refused to pay Oliver fair compensation and their
`
`diversion of DB Squared, LLC’s customers, Oliver resigned his position as Chief Technology
`
`Officer of DB Squared, LLC in October 2016.
`
`Answer: Denied. Oliver’s reasons for resigning and dissociating from DB Squared, LLC
`in October 2016 are not fairly depicted in Paragraph 29.
`
`30.
`
`After Oliver informed the Johansons that he resigned as Chief Technology Officer
`
`of DB Squared, LLC, the Johansons froze his email accounts, including his ACT email account
`
`which is in no manner related to the Johansons or DB Squared, LLC, and cut off his VPN access
`
`so that he could no longer access any of his records or files.
`
`Answer: Denied. Following Oliver’s resignation and dissociation, DB Squared, LLC
`allowed Oliver to retrieve his personal belongings without restriction. Thereafter, DB Squared,
`LLC took commercially reasonable efforts to preserve the integrity of all computer systems and
`email accounts thereby preventing deletion, alteration, or misuse of intellectual property. Such
`steps are not only commercially reasonable but are advisable when dealing with computer
`
`- 6 -
`
`

`

`Case 5:17-cv-05129-TLB Document 6 Filed 07/13/17 Page 7 of 19 PageID #: 48
`
`technology. On information and belief, Oliver not only had unrestricted access to his personal
`documents, if any, but he also retained a full copy of all such material including the computer
`software program on his home or work computer and even today such information remains in his
`possession.
`
`31.
`
`Chris Devine is an independent contractor that Oliver engaged in June 2006,
`
`through his company ACT to provide information technology services for ACT’s customers.
`
`Answer: Defendants are without complete information to admit or deny the allegations in
`Paragraph 31 and therefore deny such allegations.
`
`32.
`
`Through ACT, Devine provided information technology services to DB Squared,
`
`LLC and other ACT customers. ACT billed DB Squared, LLC for Devine’s time and ACT paid
`
`Devine.
`
`Answer: Defendants are without complete information to admit or deny the allegations in
`Paragraph 32 and therefore deny such allegations.
`
`33. When Oliver resigned as Chief Technology Officer of DB Squared, LLC, the
`
`Johansons instructed Devine to freeze Oliver’s email accounts, including Oliver’s ACT email
`
`account, cut-off Oliver’s VPN access to his computer records, not to talk to Oliver and not to
`
`provide Oliver with any information concerning Oliver’s email accounts, computer records, or
`
`any information regarding DB Squared, LLC.
`
`Answer: Denied. Following Oliver’s resignation, DB Squared, LLC took commercially
`reasonable efforts to preserve the integrity of all computer systems and email accounts thereby
`preventing deletion, alteration, or misuse of intellectual property. Such steps are not only
`commercially reasonable but are advisable when dealing with computer technology.
`
`34.
`
`Oliver never relinquished his membership interests in DB Squared, LLC. Oliver is
`
`still the owner of a one-third interest in DB Squared, LLC.
`
`Answer: Denied. On October 24, 2016, Oliver expressly resigned and dissociated from
`DB Squared, LLC and relinquished his obligations and liabilities associated with the company.
`
`
`- 7 -
`
`

`

`Case 5:17-cv-05129-TLB Document 6 Filed 07/13/17 Page 8 of 19 PageID #: 49
`
`35.
`
`The Johansons have taken the position that Oliver is no longer a member of DB
`
`
`
`Squared, LLC.
`
`Answer: Admitted. DB Squared, LLC’s remaining members fully accepted the complete
`resignation and dissociation by Oliver as a member of DB Squared, LLC consistent with law and
`the Articles of Organization of the company. Oliver was, however, up until and including
`October 24, 2016, a member of the company. Prior to his dissociation and relinquishment of his
`interest in the company, he legally owed fiduciary obligations to DB Squared, LLC and the other
`members. Oliver has breached those obligations by his conduct surrounding this lawsuit and
`relative to his private efforts to claim exclusive ownership in a prominent asset of the company.
`The effort by Oliver in the instant litigation stands as an attempt to divert corporate assets for
`private gain of a member in violation of Ark. Code Ann. § 4-32-701.
`
`
`
`
`
`- 8 -
`
`

`

`Case 5:17-cv-05129-TLB Document 6 Filed 07/13/17 Page 9 of 19 PageID #: 50
`
`36.
`
`Oliver seeks judicial determination and declaration that he is still the owner of a
`
`one-third interest in DB Squared, LLC.
`
`Answer: There are no factual assertions for which a denial or admission is required in this
`paragraph. Denied as to whether Oliver retains any interest in DB Squared, LLC.
`
`37.
`
`The Johansons refuse to permit Oliver to access any of his computer files or paper
`
`files. He is locked out.
`
`Answer: Denied. Oliver had full access up to his systems and, on information and belief,
`even has a copy of the computer program and his other data on his home computer. He is not
`locked out. He was also given full access to the system the day following his resignation to
`obtain his personal files, which he did.
`
`38.
`
`Oliver must have the information in his computer files to conduct his business.
`
`The computer files also contain private and proprietary information that belongs to Oliver.
`
`Answer: Denied.
`
`39.
`
`Oliver seeks an emergency order from the Court ordering the Johansons to permit
`
`Oliver complete access to the computer files so that he may copy them or ordering the Johansons
`
`to provide Oliver with a complete duplicate copy of the hard drives of his computer.
`
`Answer: Denied.
`
`40.
`
`Oliver has been and will continue to suffer irreparable harm caused by the
`
`Johansons’ refusal to permit him access to his computer files. Oliver has and will continue to
`
`lose business due to his inability to utilize his computer files.
`
`Answer: Denied.
`
`41.
`
`Oliver does not have an adequate remedy at law with regard to the computer files
`
`– money cannot replace the data and other information contained in his computer files.
`
`Answer: Denied.
`
`42.
`
`It is imperative that Oliver gain access to the computer files as soon as possible to
`
`- 9 -
`
`

`

`Case 5:17-cv-05129-TLB Document 6 Filed 07/13/17 Page 10 of 19 PageID #: 51
`
`protect them from deletion or manipulation. It could be impossible to retrieve or recover data
`
`once it is deleted or altered.
`
`Answer: Denied.
`
`43.
`
`Also as an owner of DB Squared, LLC Oliver has an absolute right to access the
`
`files and records.
`
`Answer: Denied.
`
`44.
`
`In addition, as the owner of the Copyright, Oliver has the sole right to possess and
`
`maintain the written and visual materials protected by the Copyright. The Defendants have
`
`wrongfully and intentionally seized the Software.
`
`Answer: Denied.
`
`COUNT ONE – EMERGENCY ACCESS TO FILES
`
`45.
`
`Oliver incorporates all previous paragraphs as if set forth herein word for word.
`
`Answer: Defendants incorporate all prior responses. There is no articulated legal basis on
`which Count One is premised.
`
`46.
`
`Oliver must have immediate access to his computer files, email accounts, paper
`
`files and all files related to the Software residing on DB Squared, LLC's computer servers.
`
`Answer: Denied.
`
`47.
`
`The Johansons refuse to permit Oliver to access any of his computer files or paper
`
`files.
`
`Answer: Denied.
`
`48.
`
`Oliver must have the information in his computer files to conduct his business.
`
`The computer files also contain private and proprietary information that belongs to Oliver.
`
`Answer: Denied.
`
`49.
`
`Oliver seeks an emergency order from the Court ordering the Johansons to permit
`
`- 10 -
`
`

`

`Case 5:17-cv-05129-TLB Document 6 Filed 07/13/17 Page 11 of 19 PageID #: 52
`
`Oliver complete access to the computer files so that he may copy them.
`
`Answer: There are no factual assertions for which a denial or admission is required in this
`paragraph. There is also no articulated legal basis on which Count One is premised.
`
`50.
`
`Oliver has been and will continue to suffer irreparable harm caused by the
`
`Johansons' refusal to permit him access to his computer files. Oliver has and will continue to lose
`
`business due to his inability to utilize his computer files.
`
`Answer: Denied.
`
`51.
`
`Oliver does not have an adequate remedy at law with regard to the computer files
`
`- money cannot replace the data and other information contained in his computer files.
`
`Answer: Denied.
`
`52.
`
`It is imperative that Oliver gain access to the computer files as soon as possible to
`
`prevent deletion or manipulation of the files. It could be impossible to retrieve or recover data
`
`once it is deleted or altered.
`
`Answer: Denied.
`
`53.
`
`Oliver is likely to prevail on his copyright claim because the facts prove that he is
`
`the owner of the Copyright.
`
`Answer: Denied.
`
`54.
`
`Also, even if Oliver is not successful on his copyright claim, Oliver still has an
`
`absolute right to access the files and records as an owner of DB Squared, LLC.
`
`Answer: Denied.
`
`55.
`
`Unless the Court orders the Defendants to provide Oliver access to the computer
`
`files, Oliver is without an adequate remedy.
`
`Answer: Denied.
`
`
`
`- 11 -
`
`

`

`Case 5:17-cv-05129-TLB Document 6 Filed 07/13/17 Page 12 of 19 PageID #: 53
`
`COUNT TWO – DECLARATORY RELIEF - COPYRIGHT
`
`56.
`
`Oliver incorporates herein by this reference the previous paragraphs as if set forth
`
`word for word herein.
`
`Answer: Defendants incorporate all prior responses.
`
`57.
`
`There is an actual and justiciable controversy between Oliver and Defendants as
`
`to the ownership of the Copyright for the Software. Plaintiff is the sole owner of the Copyright,
`
`but Defendants have wrongly asserted a written claim to be an owner of the Copyright.
`
`Answer: Admitted only in part but generally denied as a whole. What is admitted is that
`there is an actual justiciable controversy between Oliver and Defendants. Such controversy
`comprises (1) the question of ownership of Copyright Registration TX8-299-255, (2) whether the
`‘255 Registration is a derivative work of TX 6-942-486, (3) whether Oliver is the author of the
`software and content of the information processed by such software, and (4) whether Oliver
`made material misrepresentations of fact to the United States Copyright Office. Defendants
`affirmatively state that Oliver is not the owner or exclusive author of any software program
`related to the facts alleged in this lawsuit. Denied as to all other allegations.
`
`58.
`
`Oliver seeks a judicial determination and declaration that Oliver is the sole owner
`
`of the Copyright, that Defendants have no right, title, or interest of any kind in the Copyright,
`
`and that Oliver has exclusive rights to the Copyright.
`
`Answer: There are no factual assertions for which a denial or admission is required in this
`paragraph. Defendants deny that Oliver has exclusive rights to any valid copyright or that he is
`the owner of such copyright.
`
`59.
`
`A judicial determination that Oliver owns the Copyright and Defendants do not
`
`own any right, title, or interest of any kind in the Copyright is necessary and appropriate so that
`
`Oliver and Defendants can resolve the actual controversy which exists between them concerning
`
`the ownership of the Copyright and so that Oliver may exercise his rights in the Copyright
`
`without threat of legal action from Defendants.

`
`Answer: There are no factual assertions for which a denial or admission is required in this
`paragraph. Defendants deny that Oliver has exclusive rights to any valid copyright.
`
`
`- 12 -
`
`

`

`Case 5:17-cv-05129-TLB Document 6 Filed 07/13/17 Page 13 of 19 PageID #: 54
`
`60.
`
`Oliver also seeks an order against Defendants, pursuant to this Court's declaration
`
`of Oliver's ownership of the Copyright, enjoining Defendants from making any claim to any
`
`right, title, or interest of any kind to the Copyright.

`
`Answer: There are no factual assertions for which a denial or admission is required in this
`paragraph. Defendants deny that Oliver has exclusive rights to any valid copyright. This
`assertion appears to assert a claim of copyright infringement, and if so, then Defendants deny
`any infringement or wrongdoing.
`
`61.
`
`Oliver also seeks an order prohibiting the Defendants from using the Software in
`
`any manner whatsoever.
`
`Answer: There are no factual assertions for which a denial or admission is required in this
`paragraph. This assertion appears to assert a claim of copyright infringement, and if so, then
`Defendants deny any infringement or wrongdoing.
`
`COUNT THREE – EMERGENCY RELIEF – ORDER OF PRESERVATION
`
`62.
`
`Oliver incorporates all previous paragraphs as if set forth word for word herein.
`
`Answer: Defendants incorporate all prior responses.
`
`63.
`
`Oliver requests the Court to enter an Order directing the Defendants to maintain
`
`all paper and electronic files and records in their possession and control and prohibiting them
`
`from deleting, altering, or destroying any files or records of any sort related to DB Squared,
`
`LLC, the Software or Johanson Consulting, Inc.
`
`Answer: There are no factual assertions for which a denial or admission is required in this
`paragraph.
`
`64.
`
`It is likely that unless the Court enters an immediate order, Defendants will alter,
`
`delete or destroy files.
`
`Answer: Denied. Such allegation is being offered without any reasonable basis, either
`legal or factual. The words in Paragraph 64 were not made following an inquiry that is
`reasonable under the circumstances. Such factual contentions are not warranted on any evidence
`and do not have evidentiary support.
`
`65.
`
`Ordering the Defendants to maintain all paper and electronic files and records and
`
`- 13 -
`
`

`

`Case 5:17-cv-05129-TLB Document 6 Filed 07/13/17 Page 14 of 19 PageID #: 55
`
`to refrain from altering, deleting or destroying files would not cause a burden or harm to
`
`Defendants. Defendants are required to maintain all paper and electronic files and records
`
`because they are already on notice of Oliver's claim and pending litigation.
`
`Answer: There are no factual assertions for which a denial or admission is required in this
`paragraph. Plaintiff, on the one hand, agrees it is the duty of all parties to preserve electronic and
`paper records once placed on notice of threatened or pending litigation, yet on the other hand
`Plaintiff seeks emergency relief without having performed an inquiry that is reasonable under the
`circumstances when making factual allegations that any Defendant has any propensity or
`likelihood of altering, destroying, or deleting files. Plaintiff is not entitled to any special or
`emergency relief in this regard and has not offered any factual basis for demanding emergency
`relief. Rather, Plaintiff was given unfettered access to any such personal records the day
`following his dissociation and resignation of all interest in DB Squared, LLC.
`
`66.
`
`Plaintiff would suffer irreparable harm if Defendants destroy electronic or paper
`
`files because the nature of the data would be extremely difficult if not impossible to replace.
`
`Answer: Denied.
`
`COUNT FOUR – DISSOLUTION OF DB SQUARED, LLC.
`
`67.
`
`Oliver incorporates all previous paragraphs as if set forth word for word herein.
`
`Answer: Defendants incorporate all prior responses.
`
`68.
`
`As stated earlier the Johansons have failed to keep their end of the bargain with
`
`regard to marketing and sales to potential DB Squared, LLC customers and instead have diverted
`
`those customers to their own consulting group Johanson Consulting, Inc.
`
`Answer: Denied.
`
`69.
`
`As a result of the Johansons' actions, DB Squared, LLC is not financially
`
`successful.
`
`Answer: Denied.
`
`70.
`
`In addition, the Johansons have "frozen" Oliver out of DB Squared, LLC and
`
`have taken the position that he is no longer a member of DB Squared, LLC.
`
`- 14 -
`
`

`

`Case 5:17-cv-05129-TLB Document 6 Filed 07/13/17 Page 15 of 19 PageID #: 56
`
`Answer: Denied. Admitted that Oliver is no longer a member of DB Squared, LLC as of
`October 24, 2016.
`
`71.
`
`DB Squared, LLC is member managed, but because the Johanson brothers own
`
`two-thirds of DB Squared, LLC they have ultimate control of the company to the exclusion of
`
`Oliver.
`
`Answer: Denied.
`
`72.
`
`Due to the disagreements between the parties it is impossible for DB Squared,
`
`LLC to continue to operate under the terms of the Operating Agreement. Therefore, Oliver
`
`requests that the Court order the dissolution of DB Squared, LLC.
`
`Answer: Denied. The drastic remedy of court-ordered dissolution of this company is not
`legally warranted, and there has been no stated legal or factual basis supporting dissolution.
`Oliver voluntarily removed himself from the company and the company’s liabilities by way of
`written notice on October 24, 2016. Such dissociation was accepted by the company on October
`28, 2016, in a manner entirely consistent with the company’s Articles of Organization.
`
`
`COUNT FIVE – DECLARATIORY RELIEF –
`OLIVER’S MEMBERSHIP IN DB SQUARED, LLC.
`
`Oliver incorporates the previous paragraphs as if set forth herein word for word.
`
`73.
`
`Answer: Defendants incorporate all prior responses.
`
`74.
`
`Oliver is the owner of one-third of the Membership Interests in DB Squared,
`
`LLC.
`
`Answer: Denied.
`
`75.
`
`The Johansons have taken the position that Oliver no longer owns any interest in
`
`DB Squared, LLC.

`
`Answer: Admitted.
`
`76.
`
`There is an actual and justiciable controversy between Oliver and the Johansons
`
`with regard to Oliver's ownership interest in DB Squared, LLC.

`
`- 15 -
`
`

`

`Case 5:17-cv-05129-TLB Document 6 Filed 07/13/17 Page 16 of 19 PageID #: 57
`
`Answer: Admitted.
`
`77.
`
`Oliver seeks a judicial determination that he is the owner of one-third of the
`
`Membership Interests in DB Squared, LLC.
`
`Answer: There are no factual assertions for which a denial or admission is required in this
`paragraph.
`
`78.
`
`Defendants deny all allegations not expressly and specifically admitted in the
`
`foregoing paragraphs.
`
`AFFIRMATIVE DEFENSES
`
`79.
`
`Pleading affirmatively, Oliver procured the ‘255 Copyright Registration through
`
`fraud upon the Copyright Office. There are many material and glaring errors and omissions
`
`surrounding the ‘255 Copyright Registration. The listing below is not exhaustive, but any one of
`
`these particularized examples constitutes information the Copyright Office would consider as
`
`being a material fact that would prevent the registration certificate to have issued had Oliver (or
`
`his Counsel) not knowingly withheld such information at the time of making application or in
`
`subsequent communications with the Library of Congress:
`
`1) Oliver is not the exclusive author and he withheld material information
`concerning other essential authors to the work;
`
`2) Oliver or his Counsel (Meredith Lowry) did not set forth an accurate and required
`Limitation of Copyright Claim in connection with the application;
`
`3) Oliver or his Counsel did not disclose any previous registrations for this work;
`
`4) Oliver or his Counsel did not articulate with specificity any new, additional, or
`revised material nor did either disclose the fact that substantial components of this
`program were already in existence and had already been registered;
`
`5) Oliver or his Counsel did not disclose the software programming to which Oliver
`claims exclusive ownership and authorship was done using a variety of open-
`source programmatic tools, commercially available modules and databases,
`multiple authors, and multiple programmatic languages;
`
`- 16 -
`
`

`

`Case 5:17-cv-05129-TLB Document 6 Filed 07/13/17 Page 17 of 19 PageID #: 58
`
`6) Oliver or his Counsel did not clearly nor candidly delineate between previously-
`registered portions of the software code base as demonstrated by the ‘486
`Copyright Registration (indisputably owned by DB Squared, LLC) and the ‘255
`Copyright Registration;
`
`7) Oliver or his Counsel submitted a wholly inadequate deposit to the Copyright
`Office in connection with the Application that was in duplicate yet less than 2%
`complete, did not constitute the first 25 and last 25 pages of source code, and did
`not set forth any user’s manual or other printed documentation that accompanies
`the computer program;
`
`8) The application that matured into the ‘255 Copyright Registration was applied for
`without authority of the actual owner of the software program; and
`
`9) Oliver or his Counsel withheld from the deposit many important pages, including
`the footer declaring to all licensees how the copyright ownership was vested in
`DB Squared, LLC. This stands opposite Oliver’s claim in this lawsuit and
`opposite his material representations to the Library of Congress in pursuit of the
`‘255 Copyright Registration.
`
`80.
`
`Pleading affirmatively, Oliver’s claims are barred in whole or in part by the
`
`doctrines of Unclean Hands, Laches, Waiver, Acquiescence, and Estoppel. The screenshot below
`
`is a sampling of the various copyright notices displayed to a user of the DBCompensation
`
`interface. Such notices were internally programmed to display to any licensed user. These
`
`notices were programmed into the software by Oliver himself or with his full knowledge. Such
`
`notices are displayed prominently on many different pages. These notices are strong evidence
`
`that all persons working on this program, including Oliver, clearly understood ownership of this
`
`software program vested exclusively with DB Squared, LLC.
`
`
`
`
`
`
`
`
`
`- 17 -
`
`

`

`Case 5:17-cv-05129-TLB Document 6 Filed 07/13/17 Page 18 of 19 PageID #: 59
`
`
`
`
`
`
`Pleading affirmatively, Oliver has no damages in that Oliver has not sold nor
`
`81.
`
`placed any software product into commerce. Oliver will not be damaged, injured, prejudiced by
`
`Defendants’ continued use of the DBCompensation program.
`
`82.
`
`Pleading affirmatively, Oliver’s copyright claims are barred in whole or in part by
`
`the Doctrine of Copyright Misuse.
`
`83.
`
`Pleading affirmatively, all of Oliver’s allegations fail to state claims upon which
`
`relief can be granted.
`
`84.
`
`Defendants reserve the right to assert additional affirmative defenses after they
`
`have had opportunity to conduct further discovery.
`
`- 18 -
`
`

`

`Case 5:17-cv-05129-TLB Document 6 Filed 07/13/17 Page 19 of 19 PageID #: 60
`
`
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Defendants pray that Plaintiff’s claims be dismissed with prejudice, for
`
`declaration of invalidity or unenforceability of the ‘255 Copyright Registration, for resolution of
`
`ownership and clarification of authorship vested with DB Squared, LLC, that Defendants be
`
`awarded a reasonable attorney’s fee, all costs, and any other relief to which Defendants may be
`
`entitled.
`
`
`
`
`
`
`
`BRUCE JOHANSON,
`BLAIR JOHANSON, and
`DB SQUARED LLC
`
`
`
`
`
`/s/ Mark Murphey Henry
` By: Mark Murphey Henry (97170)
`Adam Hopkins (2006282)
`HENRY LAW FIRM
`P.O. Box 4800
`Fayetteville, Arkansas 72702
`Telephone: (479) 695-1330
`Facsimile: (479) 695-1332
`Email: mark@henry.us
`Counsel for Defendants
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify to having served all counsel listed on the ECF by operation of the
`PACER/ECF filing system on the date indicated thereby.
`
`
`
`/s/ Mark Murphey Henry
` Mark Murphey Henry
`
`
`
`
`
`- 19 -
`
`