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…]

Reverse engineering of software – what are the legal boundaries?

Reverse engineering of software can be defined as ‘to copy the function of a program, without having access to the original source code’.  In Australia copyright subsists in original works including computer programs as defined in section 10 of Copyright Act 1968 (Cth)(Act).  The term ‘computer program’ is defined in section 10 of the Act as as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.    The Act and its interpretation by Australian courts provides some protection against reverse engineering of software, but only to a point, beyond which it is necessary to have end users agree to specific terms in order to protect the intellectual property contained within the program. [Read more…]

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