The predicate of TIBCO’s claim is the timing of GAIN’s deployment relative to the Enterprise Term of the software license agreement of the two companies, the software developer says.
TIBCO Software, which is suing GAIN Capital Group, LLC over copyright infringement, over-deployment of software, breach of contract and breach of the implied covenant of good faith and fair dealing, has sought to clarify its claims against the online trading giant. On Monday, March 12, 2018, TIBCO filed its opposition to GAIN’s Motion to Dismiss the plaintiffs’ complaint.
Let’s recall that the events at the basis of this action date back to November 2008 when Tibco and Gain Capital entered into a Software License Terms and Conditions Agreement and a Software License and Services Order Form, followed by other agreements in 2010 and 2012.
In May of 2016, Tibco notified Gain Capital of its intent to conduct an audit and retained KPMG, LLP as an independent auditor. Tibco alleges that from May 2016 to August 2016, Gain Capital delayed the audit by refusing to comply with audit procedures. KPMG performed a two-day on-site audit of Gain Capital and produced a report which allegedly indicated that Gain Capital had over-deployed Tibco software.
In its latest filings with the California Northern District Court, TIBCO argues that GAIN is blurring the software firm’s stance. According to GAIN, the license agreements did not contain an explicit “numeric limitation,” and, hence, TIBCO cannot assert a claim for copyright infringement. TIBCO notes that its claim is based not on the number of units deployed but on when those units were deployed. That is, according to the plaintiff, the predicate of TIBCO’s claim is the timing of GAIN’s deployment relative to the Enterprise Term, not the number of units deployed.
Putting it otherwise, GAIN’s deployment of units of software after the Enterprise Term had expired, exceeded the scope of GAIN’s license and therefore constitutes copyright infringement, for which TIBCO says it has a valid claim.
Back in December 2017, the Court sided with GAIN and 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.”
The case is captioned TIBCO Software Inc., v. Gain Capital Group, LLC (5:17-cv-03313).