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…]

How to compare software developers based on methodology

Written by Eban Escott, Ph.D., CEO of WorkingMouse

When it comes time to choosing the right software developer or development team for your project, there is more to consider than simply comparing an hourly rate.  There are many factors that come into play, not least the choice between onshore and offshore developers.

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Who owns the code?

Who owns the computer code is an important issue not just for employers but also IT contractors, who may utilise their own code libraries, and business associates embarking on joint software development projects.  This question can be critical when attempting to commercialise intellectual property, raise capital or applying for a government grant.

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Are software developers liable for defects in their software?

The question of whether software developers are (or ought to be) legally liable for bugs, errors, security vulnerabilities, or other defects in the software which they develop, and the extent to which they are (or ought to be) liable for the loss flowing from those defects, is not a new one and has been the subject of significant legal and academic debate since at least the 1980s.  This article considers the liability of software developers in negligence and under the Australian Consumer Law (ACL), and also discusses whether insurance is available to offset these risks for the developer. [Read more…]

What is a Software Development Agreement?

A software development agreement (Software Development Agreement) is a contract where one party (Developer) agrees to develop a software application for another party (Client).  Concise drafting is key in Software Development Agreements to ensure that the resulting software meets the Client’s requirements and also does not allow for scope to the detriment of the Developer. [Read more…]

Implied terms in software development contracts – the submarine in the code

The case of Peter Peter Pan’s Backpacker Adventure Travel Pty Ltd and Anor v Eye Jam Interactive[1](Pan), whilst not new, presents an interesting yet not unusual fact matrix which commonly occurs in relation to software development. There was a number of issues for the Court to resolve, primarily in regard to the ownership of the copyright in the code in the absence of a signed contract (IP Issue), and whether a term could be implied into an hourly rate contract (Implied Term) that had the effect of limiting the Respondents hourly rate claim where it was alleged that they had spent more time providing the services than was absolutely necessary.
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