GAIN Capital aims to dismiss TIBCO Software’s claims about copyright infringement

Maria Nikolova

In a reply in support of its motion to dismiss the case, GAIN Capital seeks to prove that the case is not about a copyright infringement.

Online trading major GAIN Capital Group, LLC, which is targeted in a copyright infringement case, on Wednesday filed a reply in support of its motion to dismiss the claims of TIBCO Software Inc, a provider of integration and analytics software.

In GAIN’s reply, seen by FinanceFeeds, the broker argues against two of the claims in particular: the one about GAIN committing a copyright infringement by over-deploying TIBCO’s software and the one about breaching the implied covenant of good faith and fair dealing.

GAIN argues that TIBCO cannot demonstrate that GAIN infringed TIBCO’s software license, as the broker was using TIBCO’s software after December 31, 2012 with a valid license, counter to the plaintiff’s allegations that this was done without a valid license. GAIN alleges that what is at issue between the parties is the number of units deployed pursuant to that valid license and the “unpaid use” of the software. These issues sound in contract law, not in copyright. And since TIBCO cannot credibly claim that it will be able to amend its Complaint to plead around the bar to its copyright claim, this claim should be dismissed with prejudice.

Also, according to GAIN, TIBCO fails to point to facts that differentiate its claim for breach of implied covenant of good faith and fair dealing from its claim for breach of contract. Both claims arise from the “same breach”—GAIN’s alleged failure to pay TIBCO for the purported overdeployment of TIBCO’s software.

Let’s note that GAIN disputes certain TIBCO allegations, but acknowledges that “TIBCO has met its pleading burden for its two breach of contract claims.”

The case stems from GAIN’s alleged over-deployment of certain products of TIBCO. On May 18, 2016, TIBCO notified GAIN that it intended to audit GAIN’s compliance with its use of the license. TIBCO hired KPMG to conduct an on-site audit in August 2016. KPMG produced a final deployment report, based on its August 2016 audit, which indicated that GAIN had over-deployed TIBCO software.

The case, captioned TIBCO Software Inc., v. Gain Capital Group, LLC (5:17-cv-03313), is assigned to Judge Edward J Davila at the California Northern District Court.

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