TIBCO Software clarifies copyright infringement claim against GAIN Capital

Maria Nikolova

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).

Read this next

Digital Assets

Masa and LayerZero: Bridging Blockchains for Data Sovereignty

Masa Network is poised to revolutionize the personal data landscape with its upcoming launch as a cross-chain platform, making it accessible on a variety of blockchains right from the start.

Digital Assets

Big Time Generates over $100M in Revenue since Preseason

Innovative game developer Big Time Studios announces that its highly anticipated free-to-play multiplayer action/MMO RPG Big Time, has generated $100M in revenue. According to the team, players transacted a total volume of over $230M, without selling a single token.

Digital Assets

Centralized exchanges are 10 times more popular than DEXs in Western Europe

Western European traders are found to prefer centralized exchanges over decentralized ones as CEX traffic outpaces DEXs by a factor of ten.

Market News

Stock Market Analysis: Is NVDA Losing Its Leadership?

Since the beginning of the week, the S&P 500 Index (US500) has seen a modest increase of about 0.58%, whereas NVDA’s share price has experienced a decline of approximately 3.8%. This recent divergence raises concerns among Nvidia stock investors — could it signify a loss of NVDA’s market leadership?

Industry News

ESG: Australian regulator wins first greenwashing court case against Vanguard

Vanguard admitted that a notable portion of the securities within both the Index and the Fund did not undergo the promised ESG scrutiny.

Fintech, Uncategorized

BitMEX integrates HALO from Solidus Labs for cross-market surveillance

“The recent approval of the Spot Bitcoin ETF has piqued the market’s interest. As a result of price volatility, the trading volumes for crypto derivatives have gone up substantially. HALO, with its advanced technology and crypto-native detection architecture, will enable BitMEX to smoothly and safely scale trade surveillance across its increased trading volumes and provide the necessary safeguards for new product launches.”

Reviews

IUX Broker Review

IUX, recently rebranded from IUX Markets, stands as a multi-asset Forex broker recognized for its regulatory compliance across various jurisdictions.

Industry News

Horizon Software rebrands to Horizon Trading Solutions

“Horizon Trading Solutions has seen accelerated global growth over the past year to meet the rising demand for our trading solutions and built-for-purpose technology offering. The choice to rebrand represents a key part of this development, while maintaining our heritage and history in the industry.”

Market News

USDJPY has surged to levels last witnessed in 2022. Should we consider opening a short position?

The recent resurgence of the US dollar has propelled USD/JPY to new heights, touching levels not seen since 2022. This surge comes against the backdrop of stable short-term yields and ongoing economic data that fails to signal a significant slowdown, prompting questions about the extent of current monetary easing measures.

<