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
September 4, 2019 by
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…]
De-encryption Bill currently before Joint Committee
October 4, 2018 by
The much awaited Telecommunications and other Legislation Amendment (Assistance And Access) De-encryption Bill 2018 (De-encryption Bill) has been referred to the Parliamentary Joint Committee on Intelligence and Security (Joint Committee). The Joint Committee has allowed three (3) weeks for submissions. It is a very short time-frame for submissions considering the controversial nature of the Bill. Submissions close on 12 October 2018 and a hearing will then be held by the Joint Committee one (1) week later. The De-encryption De-encryption Bill (if passed) amends the Telecommunications Act 1997(Cth) (and various other acts) and has the stated aim of “establishing frameworks for voluntary and mandatory industry assistance to law enforcement and intelligence agencies in relation to encryption technologies via the issuance of technical assistance requests, technical assistance notices and technical capability notices….” [Read more…]
De-encryption laws to make tech giants cooperate with law enforcement
July 20, 2018 by
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…]
EU General Data Protection Regulations (GDPR) – How to comply
May 25, 2018 by
If you are an Australian entity and want to inquire about compliance with the GDPR click here.
Similar to the Australian Privacy Principles (APP) as set out in the Australian Privacy Act 1988 (Cth) (Privacy Act), the General Data Protection Regulation (GDPR) ‘lays down rules relating to the protection of natural persons and the processing of their personal data.’ The GDPR came into force on 24 May 2016 and became binding on all European Union (EU) member states on 25 May 2018. [Read more…]
How to compare software developers based on methodology
November 24, 2017 by
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.
Software as a service (SaaS) contracts – legal considerations
September 5, 2017 by
In a world increasingly reliant on technology it is important that the promoters of new business models understand some of the legal issues that their new business models present. In recent years, the development and reliance on software has spawned a new category of business model – software as a service (SaaS). The SaaS contract usually differs from a software licence because the end user is not making a copy of the software but is obtaining a right to access it as a service. This article discusses some of the legal issues that need to be considered by those commercialising a SaaS business model. [Read more…]
Are software developers liable for defects in their software?
December 20, 2016 by
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?
August 24, 2016 by
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…]
2012 Events
October 30, 2015 by
Our lawyers frequently speak on topics of interest within our areas of practice. The following is a list of events that we have spoken at in 2012: [Read more…]
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