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.

Read this next

Metaverse Gaming NFT

Despite crypto winter, Fastex grabs $23.2 million in Fasttoken token sale

Fasttoken, part of the Fastex web3 ecosystem, has secured $23.2 million in financing through the private and public token sales of its native cryptocurrency Fasttoken (FTN).

Digital Assets

Iran to repay Russian debts in gold-backed stablecoins

A high-ranking member of the Russian parliament confirmed reports that his country was in talks with Iran to create a stablecoin for foreign trade settlements, to replace the dollar, ruble and Iranian rial.

Digital Assets

SEC denies Cathie Wood’s bitcoin ETF for second time

The approval of a regulated crypto derivative is still looking far less likely, as the US regulators have once again denied Cathie Wood’s application for a long-awaited spot bitcoin exchange-traded fund (ETF).

Executive Moves

Pavel Spirin promoted to Scope Markets CEO following Rostro acquisition

Belize-based FX and CFDs brokerage Scope Markets has promoted Pavel Spirin to take on an expanded role as the company’s chief executive officer. He replaces the outgoing CEO Jacob Plattner, who has also been a major shareholder since he resigned his position as managing director at GKFX.

Retail FX

Public.com goes all-in on alternative investing, launches Rare Sneaker Portfolio

“The concept of curated Portfolios means that our members will be able to invest in categories like art, trading cards, royalties, and real estate without needing to become subject matter experts on individual assets.”

Industry News

State Street taps AWS and Microsoft for cloud and infrastructure solutions

“By standardizing and simplifying our technology operating model, we will be able to more quickly deploy client environments and launch new products and services, while continuing to enhance the resiliency of our technology environment and our business operations.”

Institutional FX

Bitpanda launches Investment-as-a-Service business for banks, fintechs, online platforms

“Financial institutions today have to ask themselves how they aim to cater the increasing demand for modern investing solutions. Building these Individually, means a high startup cost, and products that are often outdated before they are even launched.”

Institutional FX

Options expands market data feeds after partnership with Tools for Brokers

“Our integration with ACTIV Financial marked the beginning of a new era in market data availability and infrastructure. Our teams have come together to provide unparalleled, fully managed market data services alongside Options’ global connectivity and infrastructure.”

Industry News

Recruitment in financial services sector buoyant despite planned mass layoffs

“It remains to be seen what impact this will have on hiring levels within the financial services arena this quarter”, said APSCo, regarding the expected mass layoffs within the financial services sector in England & Wales. 

<