Software litigation – how much evidence is enough?

Litigation involving software commonly involves allegations of copyright infringement and breaches of contractual obligations of confidence.  However, without an “anton pillar” style order, it can be challenging to substantiate the extent of any alleged breach due to the technological nuances involved with properly analysing available evidence.   This make it difficult for the plaintiff to decide whether or not to initiate legal proceedings against an infringing party.  In circumstances where a prospective applicant does not have complete access to the source code, it may be desirable to make an application for discovery prior to the start of proceedings pursuant to Rule 7.23 of the Federal Court Rules 2011 (Cth) (Rules). [Read more…]

Has my software been copied? – the legal test

There is an urban myth that something can be copied and changed by 20% or so and then there is no copyright infringement.   Rightly or wrongly this is simply untrue.  In the case of IPC Global Pty Ltd v Pavetest Pty Ltd (No 3) [2017] FCA 82 (IPC Global), a former employee of the applicant copied source code and passed it to a developer.  It was subsequently alleged that in doing so, the respondent had breached a contractual obligation of confidence and had also breached the applicant’s copyright. [Read more…]

A bet or a game? The Lottoland case

On 16 August 2019, the Supreme Court of New South Wales (Supreme Court) ruled in favour of the plaintiff, Lottoland Australia Pty Ltd ACN 602 590 429 (Lottoland), in its action against the Australian Communications and Media Authority (ACMA) for their investigative findings against them stating their online products were in contravention of the relevant legislation: Lottoland Australia Pty Ltd v Australian Communications and Media Authority [2019] NSWSC 1041. [Read more…]

Confusing marks – Sensis v Senses

In the recent case of Sensis Pty Ltd v Senses Direct Mail and Fulfillment Pty Ltd [2019] FCA 719 (24 May 2019) (Sensis v Senses) the moral of the story might be that if your brand name is so similar to another company that your customers could confuse or are confusing their name with yours… you might be in trouble.  This was the case in Sensis v Senses where Senses Direct Mail and Fulfillment Pty Ltd (Respondent) was held to have infringed the registered marks of Sensis Pty Ltd (Applicant) owner of well-known directory brands, including the Yellow Pages and White Pages. [Read more…]

Contractual terms can be misleading – Jetstar under fire

Businesses often make broad sweeping statements, in their agreements and particularly in the terms and conditions of sale presented on their websites purporting to exclude consumer’s rights to warranties, guarantees or remedies.  In reality, such declarations can amount to a breach of the Australian Consumer Law (ACL) which recently occurred in relation to Jetstar. [Read more…]

Technology startups – top 5 legal considerations

The allure of generating income from a subscription base, operating a marketplace or your own e-commerce venture is strong and for good reason.   The success stories of tech startups and the unicorns in this space are many, but so are the failures.  If this is the path you are considering taking, these are our top 5 legal considerations. [Read more…]

Privacy Awareness Week 2019 – 12-18 May 2019

During  Privacy  Awareness  week  2019 Australian businesses  are  reminded  they  are  entrusted  with  certain  responsibilities  pursuant  to  the  Privacy  Act  1988  (Cth) (Privacy  Act).    In  particular  the  way  they  collect,  store  and  disclose  the  personal  information  of  their  customers. [Read more…]

Legal issues in software support agreements

Software developers (Developers) need to ensure that they consider how they provide support (both technical and product support) when taking their application (Software) to market.  This applies regardless of the system architecture, however it is usually more important in the case of mission critical systems and those used for businesses.  In the world of software as a service and robust mature systems how support is to be provided can often be overlooked until an important customer asks to review the terms of service, the SLA or the support contract (Support Agreement) with an eye to negotiating the levels of service they can expect. [Read more…]

Abhorrent violent material prohibited

The Australian Parliament has promptly passed the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth) (Act) according to the Explanatory Memorandum in response to the events of the March 2019 mass shooting in Christchurch, New Zealand.  The Act creates various new sections of the  Criminal Code Act 1995 (Cth)(Criminal Code) and in particular section 474.33 and 474.34 creates (2) new offences in relation to “internet service providers, content service providers and hosting service providers” (Service Providers) as follows: [Read more…]

De-encryption laws to make tech giants cooperate with law enforcement

Updated 4 October 2018 – see De-encryption De-encryption Bill currently before Joint Committee

According to the ABC website, in the next few weeks Cyber Security Minister Angus Taylor is poised to present new legislation which once passed will require technology companies and multinationals to assist law enforcement to access encrypted data of “suspected criminals and terrorists”.  Currently, the bill is not yet before parliament but should appear on its website once officially announced.

In February, the government has indicated its plans to tackle criminal use of encryption with the Honourable Peter Dutton MP stating in an address to the National Press Club:

“Law enforcement access to encrypted communications should be on the same basis as telephone and other intercepts,
in which companies provide vital and willing assistance in response to court orders.”
[Read more…]

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