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  • Obtaining evidence of end-user copyright infringement is the major challenge of the digital age, as there is no point of sale where evidence can be obtained
  • Software copyright holders place a heavy reliance on the evidence of motivated informants
  • Company directors still have the requisite control to be exposed to personal liability where their company has engaged in infringing conduct. That can be the case even when the director had no actual knowledge of the infringement
  • The availability of additional damages is a powerful incentive for respondents to settle software infringement claims at an early stage

While Australia’s surveyed non-compliance with software copyright is average for a developed economy (BSA Global Software Survey 2014) – measured at 21 per cent or US$743 million 2013 – it is not a figure to be treated lightly if a fate like that of the music and film industries is to be avoided.

The seminal case on damages for software infringement, Autodesk v Cheung (1990) 171 IPR 69, involved a physical sale of counterfeit software, installed on PCs by a system builder. The case predates the distribution of software using internet connections. In the “digital economy”, software can now be downloaded and activated by an end-user without actually dealing with the physical product.

Much of this activity – such as sales on platforms such as eBay and downloads from sites advertising their purpose – remains visible. Other transactions using peer-to-peer technologies are more difficult to detect.

To see what is at stake, one only has to consider the fate of the recorded music industry. From 1999 to 2013, music sales in the US dropped from US$14.6 billion to US$7 billion (reference RIAA website). The TV and film industries face similar fates – one need only remember Australia’s dubious position as world leader in the downloading of unlicensed versions of Game of Thrones.

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