White SW Computer Law Intellectual Property, Information Technology & Telecommunications Newsletter - January 2000

There is no question as to whether the unauthorised copying of a software program from a floppy disk onto a computer's hard disk is a copyright infringement. A less certain point is whether launching the program by transferring a “copy” from the hard disk into RAM (Random Access Memory) is a further copyright infringement. If the Courts take the view that such copying is a copyright infringement, the use of an unauthorised copy of a software program will lead to a chain of copyright infringements, each time the program is used.

In the matter of Microsoft Corporation and Anor v Business Boost Pty Ltd and Ors, the Federal Court briefly examined this question and decided that there was a open and serious question of law to be determined in relation to “copying” into RAM. In this matter, Microsoft took action against various parties concerned with the sale of refurbished computers, some of which allegedly had unauthorised copies of Microsoft software loaded onto the hard disk. Following complaint made by dissatisfied customers, Microsoft commenced proceedings in relation to copyright infringement and trade mark infringement. Microsoft were successful in their application restraining one of the defendants from reproducing or authorising the reproduction of certain Microsoft software programs; from importing or distributing the programs, from infringing or directing or procuring the infringement of Microsoft trade marks and from making misrepresentations in relation to them. Microsoft also sought delivery up of the infringing programs and associated equipment.

This question will be resolved, in part, by the Copyright Amendment (Computer Programs) Act 1999, which, provides that: the copyright of a computer program is not infringed by the making a copy in the course of running a licenced copy of the program. This still leaves open the problem with respect to copies of an unlicensed copy and the operation of Internet caches or proxy servers.

If a Court takes the view that “copying” into RAM is a copyright infringement in itself (which is likely), it may lead to an increase in the number of people sued for innocent infringement and an increase in damages awarded where there is a demonstrated chain of such infringements each time the infringing software program is used. It is also important to note that the directors of a company who are seen to be the “controlling mind” of the company with also be in danger of being sued for the company's copyright infringements.
It is important for company directors to ensure that they conduct regular software audits to ensure that all copies of software programs being used by the company are authorised.

For some time now, domain name disputes have been becoming more common. The dispute policy in the past has appeared to create some problems for domain name holders who may have registered a domain name in good faith, only to have a large corporation demand that it be surrendered based on the similarity between the domain name and the corporation's trade mark. Internet Corporation for Assigned Names and Numbers ( “ICANN” ) has now adopted the Uniform Domain Name Dispute Resolution Policy, which sets forth the terms and conditions in connection with a dispute between a domain name holder and any party other than ICANN. It is hoped that this policy will assist domain name holders who have registered domain names in good faith. The full terms and conditions may be read at www.icann.org . By registering, maintaining a registration or renewing a registration, a domain name holder is held to warrant that, amongst other things, to their knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party; that they are not registering the domain name for an unlawful purpose; and that they will not knowingly use the domain name in violation of any applicable laws or regulations. It is the domain name owner's responsibility to determine whether their domain name registration infringes or violates someone else's rights. In some cases, where a domain name holder was forced to relinquish their domain name in the past, for example due to an alleged trade mark infringement, they will be able to make an application that the domain name be restored to them. However, new laws, particularly in the US such as the AntiCybersquatting Consumer Protection Act, are making it increasingly difficult to register commercially desirable domain names on a speculative basis.

Although the turn of the millennium did not cause widespread computer failures, it can be expected that over the course of the coming months, further Y2K errors will arise. However, it is important to remember that non-Y2K errors can also cause major interruption to business. Your business should have a set procedure in place to deal with all software errors in a systematic way, not only to assist in tracking errors and how they arise, but to provide an accurate record of events, should litigation be necessary to recover your loss and damage suffered.

Whether you are the customer using the software or the supplier and/or programmer, should an error occur in your software, it will be important to keep detailed notes of the circumstances of how the error occurred. Should a dispute arise, it will be important to be able to demonstrate from the recorded information how you think the fault arose. For example, faulty hardware or third party software may cause non-faulty software to appear as if it has an error.

The key aspect to reporting errors is locating the fault. In many cases, the user will not have the expertise to locate the fault, so it is important to record the following information each time a fault occurs to allow analysis of the problem by someone who was not present when the error occurred.

• A general description of the fault
• The symptoms of the fault
• What happened before, during and after the fault
• The time and date of the fault
• The program reporting the error (including release and update levels)
• The program(s) running at the time of the fault (including release and update levels)
• The operating system including release levels and update levels
• The error number reported and any other relevant information displayed such as error registers
• Collect memory dumps, audit logs, error logs, message logs, transaction logs and any other information no matter how irrelevant. In serious failures an entire tape backup (if possible) should be taken for later evidence.
• A complete list of all hardware components including part numbers and BIOS levels
• Has the operation worked before?
• If so, what has changed?
• Can the fault be reproduced?
• Version control can be critical to fault isolation and determination and it is important that versions are appropriately marked for both correcting the fault and subsequent possible litigation.

Customers should ensure that they report and document any errors as soon as possible, with as much detail as possible to give the supplier an opportunity to correct the error before loss and damage is incurred. The supplier may also have further information, which they require that the customer collect. Customers should ensure that they are familiar with their suppliers' requirements. Suppliers likewise need to ensure that they act quickly upon any reported errors to minimise any potential loss and damage suffered by the customer.