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SOFTWARE LITIGATION MATTERS

Each year there continue to be a growing number of copyright claims filed in Federal Court based upon the infringement of underlying software code. While patent infringement claims involving software continue to decline, the opposite is the case dealing with software copyright disputes. Our Florida Intellectual Property Attorneys represent software developers, software designers, software users, software licensees, and software licensors in a variety of copyright infringement claims including software breach of contract, software work for hire, and software license disputes. In addition, our Miami Infringement Attorneys help address software ownership disputes, software piracy, as well as related claims sounding in software theft.

Software Infringement

Software infringement is a serious matter. Claims of software infringement, under the United States Copyright Act, may result in a Federal Action where the software owner seeks recovery for not only their attorneys fees and costs, but statutory damages in the amount of $150,000 for knowing and willful acts (per instance of infringement). Accordingly, software owners are often vigilant in pursuing infringement claims, serving software infringement demands, and seeking recovery of software infringement damages.

Software infringement does not necessarily require the exact copying of software code. So long as the software owner can prove direct or indirect access to the underlying software, as well as how the accused software is substantially similar to the copyright protected code, a claim of software infringement may exist.

Our software infringement attorneys help assess whether an accused software code is substantially similar to copyrighted code, as well as whether applicable defenses may exist. Moreover, our software lawyers take the guess work out of how to address claims of software infringement, and how to address related accusations of infringement of computer programs.

Software Piracy

Software piracy involves the unauthorized copying of all (or a substantial portion of) a computer program and or a portion of a computer build, module or sub-routine. Software piracy is basically a subset of software infringement – specifically where there the similarity between the copyrighted computer program and the accused software is more than substantially similar, and instead rises to the level of striking similarity. Such scenarios – which are often referred to as software theft – typically occur when a software program or computer system is verbatim copied, replicated and/or duplicated. In most if not all instances, software piracy is an intentional act, and may constitute a form of willful copyright infringement.

Accusations of software piracy are also a subset of software counterfeiting. This means that a software piracy litigation may invovle the lawsuit seeking not only permanent injunction, but also a preliminary injunction to protect against injury from the software piracy. Courts typically find that Irreparable harm, which is a requirement for the issuance of a preliminary injunction, often results from acts sounding in software piracy.

Software Freebooting

Freebooting occurs through authorized acts involving on-line media and includes rebroadcasting podcasts, Internet videos, or related on-line content without the permission, right or authority of the copyright author or owner. Technically freebooting relates to acts of downloading copyright protected material, often from YouTube and then uploading through a social media video player, such as the Facebook video player. Often, video freebooting is motivated by copying and then retransmitting a viral video via social media with the hope of obtaining larger social media clout, all at the demise of the copyright video owner.

Freebooting infringement has become a growing issue on social media, resulting in Facebook infringement claims, accusations of infringement on twitter, and related disputes. While such freebooting scenarios are often simply to repost and/or share videos, Miami freebooting claims may often lead to accusations of statutory copyright infringement, as well as result in your receipt of a software cease and desist letter or related written demand to address unauthorized dissemination of on-line video content.

Our software infringement attorneys represent copyright owners who are the victims of freebooting. Moreover, we help investigate unauthorized copying, sharing and/or copyrighted videos, podcasts, viral assets, and related materials.

Software License Disputes

In addition to software infringement and software theft actions, another type of software matter often addressed by our software attorneys are breach of software license agreements. These software matters typically occur when a software licensees exceeds and/or violates some portion of a software agreement. Unlike in software copyright infringements, a breach of a software license does not require a software copyright registration to bring a claim, nor is there a requirement of substantial similarity and/or striking similarity. Accordingly, there are important distinctions and unique issues to address when assessing and/or reviewing the potential of a breach of software license.

Examples of breach of a software license may include failure to pay software royalties or make payments under a software agreement – and/or violation of various representations and/or warranties regarding such software. Other scenarios that result in software breach cases may include violation of confidentiality obligations in software agreements.

Our software attorneys help assess claims relating to software licenses, discuss potential defenses to claims of software breach and/or how to best address accusations of software violations.

Software Work for Hire

Another example of software dispute arises due to issues of ownership of underlying software. This often occurs when there is software development and/or software collaboration without an appropriate or sufficiently comprehensive software agreement.

Section 101 of the Copyright Act defines a work for hire a either (a) one prepared by an employee with the scope of his/her employment or (2) one of nine specified categories of specially ordered or commissioned works, provided that the parties expressly agree in writing that the work is made for hire.

When addressing the work for hire issue in the context of software development, the question arises whether the software program was created by the employment in the scope of his or her job – and if so, whether it is owned by the software company or the software employee. This becomes even more murky when a software company hires independent contractors to perform the software development and/or offer little if any guidance in developing the software. As such, the scope of duties of a software employee or independent contractor should be explained in a software development agreement, which includes appropriate work for hire provisions.

Failure to negotiate and/or execute a written contract may result in a dispute over software ownership. Often, the absence of written terms with a software programmer who is an independent contractor results in a judicial finding that the copyrights in the underlying programs are owned by the programmer, rather than the software development firm who hired that programmer. See, e.g., BPI Systems Inc. v. Leigh, 532 F. Supp. 208 (W.D. Tex. 1981). Often this determination also turns on the level of direction and control placed over the software developer, his/her independent contractor status, deductions in taxes from paychecks, and related objective factors.

Our software attorneys help sort through software ownership disputes, address issues involving software work for hire matters, as well as negotiate software ownership matters. What is more, we help address how to best deal with accusations from third-parties suggesting they maintain ownership in some portion of software code.