GAIN Capital moves to dismiss TIBCO’s claims about copyright infringement, breach of good faith and fair dealing covenant
According to GAIN, this case is not about copyright infringement but rather a contract dispute between the parties about whether the broker paid sufficient fees for the copies of the TIBCO software it deployed.
The dispute between TIBCO Software Inc and GAIN Capital Group, LLC over whether the broker made an unauthorized use of TIBCO’s protected intellectual property continues at the California Northern District Court.
Let’s recall that in its amended complaint, filed earlier this month, the software firm reiterated its claims of copyright infringement, over-deployment of software, breach of contract and breach of the implied covenant of good faith and fair dealing.
On Monday, January 29, 2018, GAIN Capital sought to dismiss the allegations. In particular, the broker requested that the Court dismiss Counts II and IV of the Complaint without leave to amend. This means that GAIN disagrees with the accusations of copyright infringement and of breach of the implied covenant of good faith and fair dealing.
In fact, the Court has earlier sided with GAIN with regard to these two claims. Whereas TIBCO contests the Court’s decision, GAIN argues that the software firm says nothing in its amended complaint that should reverse the Court’s earlier decision.
Back in December 2017, the Court dismissed the copyright infringement claim because TIBCO failed to distinguish between GAIN’s alleged use of TIBCO’s software while a valid license was in effect and the alleged use of the software after the licenses expired. The Court further found that GAIN licensed from TIBCO an “enterprise” amount of software under the 2008 License; that the same license defined “Enterprise” as an “unlimited number of units . . .”; and that GAIN again licensed an “enterprise” amount of software later in the parties’ 2010 Order Form.
The Court also dismissed TIBCO’s breach of the implied covenant of good faith and fair dealing claim as duplicative of TIBCO’s breach of contract claim, specifically finding the two claims were “nearly identical as pled.”
GAIN insists that TIBCO’s amended complaint does not show that the licenses it granted to GAIN contain an explicit numeric limitation, as required by Ninth Circuit precedent for a copyright infringement claim to go forward.
GAIN also addresses TIBCO’s assertions about GAIN allegedly having delayed the 2016 KPMG Audit. The broker notes that the Audit occurred a short time after TIBCO alleges it should have started, it was completed promptly, and the Audit’s results are the basis of TIBCO’s breach of contract and copyright infringement claims in this lawsuit. According to the broker, there are simply no well-pled factual allegations from which the Court can make a plausible inference that TIBCO suffered harm because of any purported delay. TIBCO’s breach of the implied covenant of good faith and fair dealing claim should fail accordingly, GAIN argues.
The only question, according to GAIN, is whether the broker has paid for all of its deployment as a matter of contract. TIBCO’s claim for “unpaid use” of its software is still “not cognizable as copyright infringement”, the broker says.
The case is captioned TIBCO Software Inc., v. Gain Capital Group, LLC (5:17-cv-03313).
