Kwan Software Eng'g, Inc. v. Foray Techs., LLC

Independent development constituted complete defense to copyright infringement and DMCA claims.

Opinion (Illston): Foray Technologies, LLC (Foray), the Defendant, sold its ADAMS software to the same customer base as Kwan Software Engineering’s Veripic software (Veripic), the Plaintiff. Foray’s software offered the same function as Veripic’s software. Veripic therefore claims that sometime in 2008, Foray obtained and unlawfully copied a portion of its software. In 2012, VeriPic filed a complaint against Foray alleging, inter alia, copyright infringement, contributory and induced copyright infringement, and violation of the Digital Millennium Copyright Act (DMCA), 17 U.S.C § 1201. Foray moved for summary judgment on all of Veripic’s claims, and moved for summary judgment of its affirmative defenses. In order to establish copyright infringement, Veripic must prove two elements: ownership and infringement. First, it must prove it is the owner of a valid copyright. Second, they must prove the alleged copy contains elements of the work that are from the original. Veripic had the burden to establish the second element by proving Foray had both access to their copyrighted material and had to show the substantial similarities between their work and Foray’s infringed work. Foray argued that there is no evidence it has had access to Veripic’s copyrighted material. Foray also provided the Court with evidence that it independently developed its software by 2005. The Court found that Veripic failed to prove both elements of copyright infringement. As such, the court has GRANTED summary judgment on the claim of copyright infringement. Veripic additionally asserted that Foray violated the DMCA by improperly gaining access to the source code in their copyrighted work by circumventing technological measures. Foray argued that there was no evidence proving this, and the court agreed. The Court GRANTED summary judgment of the claim of violation of the Digital Millennium Copyright Act. Veripic also claims that Foray contributed or induced copyright infringement by Veripic’s customers. In order to establish contributory infringement of a copyright, there must be a showing that the Defendant (1) knows of a third-party’s infringing activity, and (2) induces, causes, or materially contributes to such conduct. Foray argues that there is no evidence of such conduct. Veripic only offers evidence in a form of an email that shows that one of Foray’s employees attempted to gain access to software from one of Veripic’s clients. However, there is no evidence that Foray actually did gain access. The Court therefore GRANTED summary judgment on the claim of contributory and induced copyright infringement.

All of Foray's motions for summary judgment were granted, so the Court did not address the affirmative defenses.