Software infringement caselaw
One question that pops up when we represent companies facing software audits is “can the software publisher shut our company down if they believe we are software pirates?” The short answer is yes, it is possible your company could be subject to the highly publicized “software raids” and possible lawsuit seeking an “injunction.” An injunction is basically an order from the Court demanding that a party do or refrain from doing something. According to federal case law in the 9th circuit (which governs Arizona, California, Oregon, Washington, Montana, Idaho, and Nevada:
“The Copyright Act provides that courts ‘may’ grant injunctive relief ‘on such terms as [they] may deem reasonable to prevent or restrain infringement of a copyright. 547 U.S. at 392, 126 S.Ct. 1837 (quoting 17 U.S.C. § 502(a)). Nothing in the statute indicates congressional intent to authorize a “major departure” from “the traditional four-factor framework that governs the award of injunctive relief,” or to undermine the equitable principle that such relief is an “extraordinary and drastic remedy” that “is never awarded as of right,” Munaf v. Geren, 553 U.S. 674, 689–90, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) (internal quotation marks omitted). We therefore conclude that the propriety of injunctive relief in cases arising under the Copyright Act must be evaluated on a case-by-case basis in accord with traditional equitable principles and without the aid of presumptions or a “thumb on the scale” in favor of issuing such relief. Monsanto, 130 S.Ct. at 2757. See Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 980-81 (9th Cir. 2011)”
What are the grounds to obtain a preliminary injunction for alleged copyright infringement?
(1) that it has suffered an irreparable injury;
(2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury;
(3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted;and
(4) that the public interest would not be disserved by a permanent injunction
“We begin by considering whether the district court erred in denying Perfect 10’s request for preliminary injunctive relief. “A plaintiff seeking a preliminary injunction must establish [ (1) ] that he is likely to succeed on the merits, [ (2) ] that he is likely to suffer irreparable harm in the absence of preliminary relief, [ (3) ] that the balance of equities tips in his favor, and [ (4) ] that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008). Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 978-79 (9th Cir. 2011). See, e.g.,Weinberger v. Romero—Barcelo, 456 U.S. 305, 311–313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982).
Injunctions in software infringement cases
Other cases have shed light on the seeking of the issuance of court ordered injunctions in software cases and courts have noted:
“When a licensee exceeds the scope of the license granted by the copyright holder, the licensee is liable for infringement. See Sun Microsystems, Inc., 188 F.3d at 1121 (“If … a license is limited in scope and the licensee acts outside the scope, the licensor can bring an action for copyright infringement.”); see also 3 Nimmer & Nimmer, supra, § 10.15[A] (“when a license is limited in scope, exploitation of the copyrighted work outside the specified limits constitutes infringement”). In S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1083–84 (9th Cir.1989), for example, a software designer that had granted a payroll company a license to use its copyrighted software alleged that the licensee had infringed its copyright by preparing and duplicating a modified version of the program. We observed that a “license must be construed in accordance with the purposes underlying federal copyright law. Chief among these purposes is the protection of the author’s rights.” We concluded that the payroll company, which possessed the right to use the software but had not acquired any ownership rights, had exceeded the scope of its license by modifying and copying the program. The case was remanded for the district court to consider whether the payroll company had any valid defenses to the infringement action. Id. at 1089 & n. 11.
Contact a software & copyright infringement law firm
Latest posts by Vondran Legal - Business, Real Estate, Insurance, Technology & Civil Litigation Counsel (see all)
- U.S. Supreme Court Says Cheerleader Uniforms Copyrightable - March 22, 2017
- Can you copyright a signature yoga pose or choreographed dance move? - February 24, 2017
- Did your company receive an email about an “Autodesk Software Review” - February 20, 2017
- Malibu Media Lawsuit Updates – Defendant wins! - February 14, 2017
- “Back off buddy” – Intentional interference with prospective economic relations under California law explained - February 1, 2017