We represent Abbott Diabetes Care Inc. (“Abbott”) in connection with its FreeStyle Libre products and LibreLink computer programs. As you may be aware, Abbott is a global leader in diabetes care, providing innovative glucose monitoring solutions, including software, hardware, and digital solutions for consistent and accurate glucose monitoring. Abbott owns all intellectual property rights in and to these technologies, including its copyrights, trademarks, and trade secrets.
It has come to Abbott’s attention that a software project titled “Libre2-patched-App” has been uploaded to GitHub, Inc.’s (“GitHub”) website and creates unauthorized derivative works of Abbott’s LibreLink program (the “Infringing Software”). The Infringing Software is available at https://github.com/user987654321resu/Libre2-patched-App. In addition to offering the Infringing Software, the project provides instructions on how to download the Infringing Software, circumvent Abbott’s technological protection measures by disassembling the LibreLink program, and use the Infringing Software to modify the LibreLink program.
The Infringing Software violates Abbott’s exclusive right to prepare derivative works of the LibreLink program under United States federal law. 17 U.S.C. § 106(2); Dun & Bradstreet Software Servs. v. Grace Consulting, Inc., 307 F.3d 197, 208 (3rd Cir. 2002) (holding that alteration of a copy of the plaintiff’s software constituted copyright infringement); Micro Star v. Formgen Inc., 154 F.3d 1107, 1112 (9th Cir. 1998) (same); Midway Manufacturing Co. v. Artic International, Inc., 704 F.2d 1009, 1013 (7th Cir. 1983) (affirming the enjoinment of a defendant that created a modified version of a program); Take-Two Interactive Software, Inc. v. Zipperer, No. 18 Civ. 2608, 2018 WL 4347796, at *14, 19 (S.D.N.Y. Aug. 16, 2018) (enjoining distribution of modification). Moreover, the Infringing Software is provided with instructions on how to circumvent the technological protection measures that control access to Abbott’s LibreLink program in violation of the Digital Millennium Copyright Act. 17 U.S.C. § 1201(a)(1)(A). Thus, the Infringing Program’s creator is secondarily liable for these further acts of circumvention. See In re Dealer Mgmt. Sys. Antitrust Litig., No. 18 Civ. 864, 2019 WL 4166864, at *14 (N.D. Ill. Sept. 3, 2019) (recognizing secondary liability for violations of 17 U.S.C. § 1201(a)(1)(A)). The Infringing Software also violates GitHub’s Terms of Service, which state that users “must not violate any applicable laws, including copyright” and that users must “not under any circumstances upload, post, host, or transmit any content that . . . infringes on any proprietary right of any party, including patent, trademark, trade secret, copyright, right of publicity, or other rights.”
As you can understand, Abbott must protect its rights to its intellectual property, particularly as Abbott is a healthcare company and the unauthorized use or modification of Abbott’s applications may be unsafe for consumers. Accordingly, we demand that you remove and disable access to the Infringing Software and the webpage at the location indicated above and through any other means necessary to prevent further infringement and violations. Failure to do so would make you accountable, under federal law, for compensatory damages, disgorgement of profits, costs, and attorney’s fees.
I have a good faith belief that the Infringing Program is not authorized by the copyright owner, its agent, or the law (including the fair use doctrine). I swear, under penalty of perjury, that the information in this letter is accurate and that I am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. I have read and understand GitHub's Guide to Filing a DMCA Notice. Thank you for your anticipated cooperation.
Nothing contained in this letter is intended as or should be construed to be a waiver of any right or remedy held by Abbott, all of which are expressly reserved.
KIRKLAND & ELLIS LLP
601 Lexington Avenue, New York, NY 10022