For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

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Thursday, 2 August 2007

Copyright/licence claimant wins at a Cantor

On Tuesday 31 July the charming and erudite Daniel Alexander QC, sitting as a deputy judge of the High Court, gave judgment in Cantor Gaming Ltd v Gameaccount Global Ltd, a copyright and breach of contract action. According to a rather brief All England note, the dispute involved GA Money and Golf Game, two items of gaming management software belonging to Cantor. According to Cantor, Gameaccount's use of the two software suites fell outside the scope of the licence to use the software. At the core of the dispute was Clause 10.3.6 of the agreement:

"... the parties agree that the occurrence of any of the following events shall constitute a ‘material breach’ of this agreement …

10.3.6 A third party Bookmaker (or any member of its Group) directly or indirectly finances, invests or acquires any shareholding in [the defendant]; or [the defendant] enters into any form of collaboration or agreement (whether oral or in writing) with third party Bookmaker (or any member of its Group) or any company carrying on an exchange business (or any member of its Group) in which any Intellectual Property Rights of [the claimant] are used or proposed to be used".

Gameaccount conceded liability with regard to its use of Golf Game - but was this clause breached by Gameaccount in its use of GA Money, after it made a deal with UKBetting, Europe's largest online sports content network? Yes, said the deputy judge. In his view,
* Taking an overall view, a person skilled in the art of software design would have considered that GA Money was being ‘used’ perhaps unimportantly, but still materially, in the operation of bookmaking software between 2004 and 2006. Although it wasn't actually performing the function for which it was designed (i.e. as a full-function database), GA Money was stored, backed up, reproduced in part and regularly regularly accessed in order to perform the limited function for which Gameaccount used it between 2004, following its arrangements with UKBetting, and 2006.

* Since GA Money was used in the sense contemplated by clause 10.3.6 of the agreement, it followed that Gameaccount was both in breach of contract and, since that use was outside the terms and therefore unauthorised, also an infringement of copyright.

* In the circumstances it was both just and convenient to order an injunction against Gameaccount.
It seems to the IPKat. from the very small amount of information available, that Gameaccount were always going to struggle on the breach of contract issue; he wonders whether they were just hoping that their use of the Cantor software didn't constitute use of "all or a substantial part" of a copyright work. Merpel says, it would be good to know why there was a fight over the injunction issue, given that Gameaccount appears to have ceased use of the software suites in 2006.

1 comment:

orpheus said...

Dear Jeremy,

Thank you for bringing to the attention of the public this interesting case. In fact (as with all such cases) there is much more interest to be had the closer one is able to look. The writer is constrained from commenting too much as the matter has not yet been the subject of a final order. However, there are some interesting points about just what constitutes "use" of a copyright work - which can be devined from the judgment better than any All England summary.

Also, with regard to the hard fought issue of injunction, I wonder if I might suggest a technique which I was taught in relation to understanding odd bits of patents, and which is transferable to understanding odd bits of judgments as well.

When confronted by an odd and inexplicable part of a patent, it may be useful to consider what unknown, underwater rock of prior art the draftsman might be trying to navigate around. It is the elephant in the room that no one speaks about.

In litigation, the elephant in the room is usually....

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