16 September 2019CopyrightMichiel Rijsdijk and Marlies Wiegerinck

Netherlands jurisdiction report: A model of copyright infringement?

Even though such software may contain security mechanisms that trigger notifications when the software is being misused or hacked into, infringements still occur, such as in the case Planit Software v Gear Technology Applications (GTA) of April 24, 2019, that occurred before the Dutch Court of East Brabant, the Netherlands.

Case study

The question in this case was whether copyright infringement was committed by reproducing the software with virtualisation and in backups. The claimant is the UK company Planit which, among other things, develops, produces and exploits software for 3D modelling and controlling milling machines. The defendant is the Dutch company GTA that holds a Planit licence for a number of modules of the EdgeCam software program.

Planit: multiple reproductions

Planit discovered, through the security mechanism in its software, that illegal copies of the software were used through the GTA corporate network. Planit asked to the court for leave for a prejudgment seizure and a seizure of evidence. The bailiff subsequently established that software was found on five computers in one form or another.

These copies of the software were noticed after a virtual machine was started. It turned out that there were at least seven illegal versions of the software, according to Planit.

GTA: single reproduction via the virtual server

GTA disputed that various illegal versions of the software were found. It emphasised that the copied version of the software was installed only on the virtual server, which could then be accessed via different computers. GTA claimed that there was only one reproduction, namely on the virtual server.

The court: single reproduction

Both parties established that copyright had been infringed; the only question was whether it concerned one or more illegal copies. Both parties stated that the software was indeed found on one (or more) virtualised server(s). The description of the software in the three appendices to the bailiff’s report was exactly the same.

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