News & Insights

When it comes to allegations of computer software copyright infringement, one name keeps popping up: Solidworks.

Solidworks is produced by Dassault Systèmes SolidWorks Corporation. It’s a leading CAD and engineering package, but it isn’t cheap, with outright commercial licences starting close to $10,000.  The price seems to create a steady demand for significantly cheaper “cracked” versions of the software.

Yet Solidworks comes with a sting for the potential infringer: like ET, it likes to “phone home”, sending messages back to base. That’s why, over the past three years, we have been involved in at least five instances of assisting clients who have received a letter of demand from Dassault’s lawyers alleging infringement of copyright.  Those letters invariably contain very detailed allegations of infringements:

• the version of the software being used;
• dates and times of use;
• MAC addresses of the computers on which the software is installed;
• IP addresses.

There have been instances of this happening with software other than Solidworks, but not nearly anywhere as often.

Copyright law

In Australia, the Copyright Act 1968 (Cth) considers software a “literary work”. After all, software is just lines of code, letters and numbers, so it is treated in many ways like a book would be.

The owner of copyright in a literary work has the exclusive right, among other rights, to reproduce the work in a material form. With software, such reproduction occurs when:

• an infringing copy of the software is installed;
• the infringing copy of the software is used, as reproductions of the code occur within the memory of the device running the software.

When a credible allegation of copyright infringement is received, the response is critical.  Firstly, because the copyright owner potentially has a solid copyright infringement claim that they can take to court. Secondly, because the court can award additional damages under section 115(4)(b) based on a range of factors, including the conduct of the defendant after being informed of the alleged infringement. Ignoring the allegation, or denying clear evidence of infringement, is not going to help an infringer. Settling quickly, avoiding court, and minimising legal costs is generally the best course of action.

How we help

Our first task is assessing the allegation. In one instance, the infringing software was installed on an employee’s personal device, which had been hooked into our client’s network via WiFi. The Solidworks software was used without our client’s knowledge. It was a rare instance of an infringement allegation (against our client, as opposed to the employee) being unfounded.

If infringement is likely to have occurred, our second task is to look for mitigating circumstances. Did our client buy the software from a seemingly legitimate vendor? Was the use temporary, possibly to test the software prior to purchasing a licensed version? Was the infringing software an older version, while the client had a properly licensed newer version installed on the same device?

Our third task is generally to seek a resolution with Dassault. An understanding of the software’s pricing structures and distribution models, as well as any mitigating circumstances, allows us to provide real value to our clients.

Generally, purchasing a legitimate licence at the time of being caught is not a resolution. The copyright owner is entitled to compensation for the infringing use – if you want a licence, you’ll need to purchase it on top of the settlement amount. Of course, everything can be at play in a settlement.

Key takeaways

Copied software is not free to use. If the software you buy is significantly cheaper than the general commercial price (such as approximately 0.5% of the usual price in one case), then it is most likely a cracked, infringing copy. If it seems too good to be true, it probably is.

If you have cracked software, the risk of being found out is real. The risk is increased if you operate it on a device that is connected to the internet, which is most devices these days.

Finally, getting the dispute resolved quickly, and for the right cost, is important. You don’t want to end up in court on a case where the copyright owner has solid evidence against you, because that’ll get expensive.

Our team has experience in these sorts of matters, and IP infringement disputes in general. Get in touch with the Macpherson Kelley IP team today.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.