ChatterBank0 min ago
Illegal software penalty
I sell licenced software with a contract which states
'any invoice outstanding for more than 28 days and the licence to use the software may be revoked'
So - I am going to revoke a customer licence and inform him that he must stop using my software. however, if he doesnt (and I will be able to prove it) what can I gain by taking him to court? What will his penalty be for illegal use of my software? & who decides it?
'any invoice outstanding for more than 28 days and the licence to use the software may be revoked'
So - I am going to revoke a customer licence and inform him that he must stop using my software. however, if he doesnt (and I will be able to prove it) what can I gain by taking him to court? What will his penalty be for illegal use of my software? & who decides it?
Answers
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Is it correct to presume that you yourself are the licence holder, and not solely a seller/re-seller of licenced products?
For example, if you sold a Microsoft product, you could not revoke the licence, but could attempt to enforce outstanding payment for the physical product. I don't intend to talk down to you sorry, but this information is necessary to answer your question.
For example, if you sold a Microsoft product, you could not revoke the licence, but could attempt to enforce outstanding payment for the physical product. I don't intend to talk down to you sorry, but this information is necessary to answer your question.
Yes Gmcd01 - I am the licence holder. I designed and produced the software I also provide a support service.
As the software is licenced the only outstanding money is for 695.00 which I can recover through the normal small claims route ( in progress). Its the illegal use of unlicenced software bit I am interested in.
As the software is licenced the only outstanding money is for 695.00 which I can recover through the normal small claims route ( in progress). Its the illegal use of unlicenced software bit I am interested in.
If the purchaser has broken a condition of the contract through non-payment, you may be entitled to treat the contract as broken by the purchaser. This is to presume that the non-payment is a breach of a condition and not 'merely' a warranty (in which case only damages are available). Skipping the formalities of communication with the purchaser, the licence should now be treated as voided.
The most recent case concerning ongoing use of a voided licence was in Singapore (bear with me here!) in Novemeber 2008. In this case, it concerned ongoing use of the claimant's GPS map data beyond the contractual period. The judge held that:
Unless the defendant has an explicit condition in the contract with you which allows for use beyond the licence period, the defendant may NOT continue to use it. An implied licence through your constructive knowledge of his having the access to the data is insufficient.
The judge also ordered a injunction to prevent the defendant from continuing to use the licenced software (I won't bore you with the technical names!)
Further, damages were granted on the basis of a statutory breach of the claimant's IP rights(this will vary according to circumstances).
Finally, an account of profits was ordered. The defendant was thus liable to the claimant for all profit made after the termination of the defendant's licence through use of the claimant's material. Again, this is obviously applicable on a case by case basis and I have no way of giving you an exact figure! It is also only available where the defendant has made an unlawful profit and not merely used your material (in that case the statutory award would be made).
I hope that answers your question. If you have any other queries or if I didn't make anything clear, let me know!
The most recent case concerning ongoing use of a voided licence was in Singapore (bear with me here!) in Novemeber 2008. In this case, it concerned ongoing use of the claimant's GPS map data beyond the contractual period. The judge held that:
Unless the defendant has an explicit condition in the contract with you which allows for use beyond the licence period, the defendant may NOT continue to use it. An implied licence through your constructive knowledge of his having the access to the data is insufficient.
The judge also ordered a injunction to prevent the defendant from continuing to use the licenced software (I won't bore you with the technical names!)
Further, damages were granted on the basis of a statutory breach of the claimant's IP rights(this will vary according to circumstances).
Finally, an account of profits was ordered. The defendant was thus liable to the claimant for all profit made after the termination of the defendant's licence through use of the claimant's material. Again, this is obviously applicable on a case by case basis and I have no way of giving you an exact figure! It is also only available where the defendant has made an unlawful profit and not merely used your material (in that case the statutory award would be made).
I hope that answers your question. If you have any other queries or if I didn't make anything clear, let me know!
I am happy to try and link you to the case- I will have access to the case name myself again come Monday morning so I shall repost on Monday, hopefully with the link! If it isn't readily available online, I am happy to send you my electronic copy (permitted under the 'private study' defence of the CDPA) and the article to which it is accompanied via email- although I have no idea if you can/wish to send me your email over AB privately. Either way, let me know!
As promised, here is a weblink to the case:
http://www.singaporelawwatch.sg/remweb/legal/l n2/rss/judgment/60238.html?utm_source=rss%20su bscription&utm_medium=rss
The accompanying article is called "Copyright and Cartography: Mapping the Boundaries of Infringement Liability" by Burton Ong. It can be found in the European Intellectual Property Review, 2009, Volume 31, Issue 1 at page 17. I don't have a link for that sorry.
Enjoy!
http://www.singaporelawwatch.sg/remweb/legal/l n2/rss/judgment/60238.html?utm_source=rss%20su bscription&utm_medium=rss
The accompanying article is called "Copyright and Cartography: Mapping the Boundaries of Infringement Liability" by Burton Ong. It can be found in the European Intellectual Property Review, 2009, Volume 31, Issue 1 at page 17. I don't have a link for that sorry.
Enjoy!
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