GAIN Capital has to defend itself in lawsuit about alleged software over-deployment

Maria Nikolova

TIBCO Software claims that GAIN breached its contract and committed copyright infringement by allegedly over-deploying TIBCO’s software.

Online trading major GAIN Capital Group, LLC is a defendant in a contract dispute case, brought by TIBCO Software Inc, provider of integration and analytics software.

TIBCO’s complaint asserts a number of claims against GAIN, including breach of contract; breach of the implied covenant of good faith and fair dealing; and copyright infringement.

The claims all relate to 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.

TIBCO claims breach of contract for GAIN’s alleged over-deployment of licensed software and alleged failure to pay for the same, breach of the implied covenant of good faith and fair dealing for GAIN’s alleged over-deployment of the licensed software and alleged failure to pay for the same; and copyright infringement for GAIN’s alleged over-deployment of TIBCO’s software.

GAIN Capital has filed a notice, informing the parties in the case and the court that it intends to move for dismissal of the action. GAIN disputes TIBCO’s allegations, but acknowledges that “TIBCO has met its pleading burden for its two breach of contract claims.”

Its copyright infringement and good faith and fair dealing claims, however, GAIN says, are fatally deficient as a matter of law. GAIN argues that the alleged over-deployment of that software cannot form the basis of a copyright infringement claim unless the license itself contains an explicit, enumerated limitation on the number of copies of the software the licensee is permitted to use. If it does, then the specific numeric limitation defines the scope of the copyright and the licensor can sue for copyright infringement. If it does not, as is the case at hand, then the licensor’s claim is simply that the licensee is not paying for all of the copies of the software that it is using—a claim sounding in breach of contract, but not in copyright infringement.

In its reply to GAIN’s objections, plaintiff TIBCO Software restates all of the allegations including the one about copyright infringement. The software company claims that GAIN’s deployment of additional software happened after GAIN’s license expired, thus being unlicensed and properly subject to a claim for copyright infringement.

FinanceFeeds would like to add more precision to the coverage of this case, but many of the documents in this case are either sealed or heavily redacted. This is how a large chunk of the information on the case papers that are not sealed looks like:

The case, captioned TIBCO Software Inc., v. Gain Capital Group, LLC (5:17-cv-03313), continues at the California Northern District Court.

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