There is a 13 January 2006 decision
from the Federal Court that nicely highlights why it is important to craft
proper licensing agreements with respect to the use of your software.
In the case of Mapeze Inc. v.
Destination Ontario Inc. the plaintiff created software which provides
geographic information systems and mapping capabilities. It licensed the software to the defendant
through a Memorandum of Understanding. Unfortunately, the parties disagreed about what time period the
Memorandum of Understanding covered (among various matters they parties
disagreed about).
Subsequently, the defendant
developed its own internet-driven map based GIS interactive mapping solution
and the plaintiff sued the defendant for copyright infringement and passing off
(which is like trade-mark infringement).
Subsequently, the plaintiff made an
application for summary judgment (this sort of application is filed when a
party, in this case the plaintiff, believes that the other party has no case
and the matter should be disposed of quickly).
The judge dismissed the application
having examined copies of the software as well as experts' reports filed by
both the plaintiff and the defendant concerning the similarities between the
two software products. The judge felt
that there were a variety of issues which required a trial including the
nature, timing and scope of the purported license as well as the exact quality
and quantity of copying by the defendant of the plaintiff’s software.
All of which is yet another reminder that you do yourself a disservice (in many ways) by taking shortcuts at the front end and not clearly identifying the parties' respective rights and obligations in a well-crafted license agreement. I do not suggest that such a document will eliminate disputes but it is infinitely more preferable, in my opinion, when the parties know, with great certainty, what their rights and obligations are at the beginning of a contractual relationship as opposed to fighting about those rights and obligations in court where the terms of the agreement were vaguely drafted.
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