Defense to copyright infringement: License

A license to a software may be used as a defense to copyright infringement.

US District Court dismisses copyright infringement complaint against GAIN Capital

Gain Capital asserted that by entering into a license, Tibco waived its right to sue for copyright infringement and may only sue for breach of contract. Gain Capital argued that subsequent Order Forms didn’t restrict its license to a specific number of units. #copyright

Gain Capital reasons that in the absence of a specific numeric limitation on the number of units, the alleged over-deployment may constitute a violation of a covenant giving rise to a breach of contract claim, but not a violation of a condition of the contract that would allow Tibco to assert a claim for copyright infringement.

The Court has sided with GAIN Capital, with the Judge noting that the copyright infringement claim does not distinguish between Gain Capital’s alleged use of Tibco’s software while a valid license was in effect and the alleged use of the software after the licenses expired. The copyright infringement claim was accordingly dismissed with leave to amend.

Gain Capital has also moved to dismiss the breach of the implied covenant of good faith and fair dealing claim as superfluous of the breach of contract claim. The Court agreed that the two claims are nearly identical, and the breach of implied covenant claim was accordingly dismissed with leave to amend too.

Tibco is set to file and serve an amended complaint no later than December 29, 2017.


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