Software-Generated "Infringement Report" Supports $262,931 In Remedies For Copyright Infringement

• Published date: 27 January 2021
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Bereskin & Parr LLP
• Author: Mr Adam Bobker and Martin Brandsma

The unauthorized copying of software has long been held to constitute copyright infringement under Canada's Copyright Act. But such unauthorized reproductions often occur behind closed doors. How then can software owners obtain sufficient evidence to enforce their rights without access to the device(s) on which they believe illicit copies have been made? A recent decision from the Federal Court of Canada offers a possible efficient means for doing so. On a motion for default judgment, the Court assessed damages for copyright infringement in a computer program based on an infringement report generated by antipiracy software. The decision sets a highwater mark for the courts' embrace of such technology to enforce property rights.

In Trimble Solutions Corporation v. Quantum Dynamics Inc., 2021 FC 63 ("Trimble"), the Plaintiffs brought an ex parte motion for default judgment against the Defendants for infringement of copyright by virtue of unauthorized use of their three-dimensional modelling software (the "Program"). After concluding the Defendants were in default, the Court determined first, whether the Plaintiffs had established that copyright subsisted in the Program, and second, whether the Plaintiffs' evidence demonstrated infringement by the Defendants and the extent of such infringement.

Copyright in the Program

Computer programs have long been protected as literary works under Canada's Copyright Act. In Trimble, the Plaintiffs provided evidence that copyright in versions 20.0 and 21.0 of the Program had been registered in Canada.

The Court noted that there were various "sub-releases" of the Program, including Version 20.1 which was the specific version at issue. Copyright was not registered on each sub-release because "they are modifications and improvements built entirely on the base code and documentation for the previous release". Without discussion, including how Version 20.1 differed from the registered versions, the Court concluded that Version 20.1 of the Program was an original work that fit within the definition of "literary work" as set out in the Copyright Act.

Infringement

The Plaintiffs' evidence of unauthorized copying is notable. There were two third-party antipiracy products built into the Program to detect unauthorized use. One of the products from SmartFlow Compliance Solutions Ltd. (SmartFlow), provided a range of information once it detected an unauthorized use, including time and date of the event, the IP address associated with...