Testing Backups Does NOT Infringe Copyright
By Anna Johnson on April 4th, 2009Software buyers take note: you’re allowed to create and test back-ups of the software you buy. Well, so said the Full Federal Court of Australia when it was asked to consider whether or not testing a disaster recovery copy of a software program infringed copyright under Australian copyright law.
The court’s decision springs from a $3.2 million lawsuit brought by Software AG against Racing & Wagering WA.
Software AG alleged that the racing authority had breached Software AG’s copyright because it had tested a disaster recovery copy of the software Racing & Wagering had licensed from Software AG.
The software licence agreement allowed Racing & Wagering to copy the software for archival or emergency restart purposes.
Racing & Wagering installed the software and also made a disaster recovery copy which it stored offsite on a system hosted and maintained by a third party. It used this copy four times, for testing purposes.
Software AG sought $3.2 million in additional licence fees and maintenance fees arguing that the licence agreement didn’t allow Racing & Wagering to install or test an offsite disaster recovery copy.
The Full Court, however, upheld the first instance court decision that off-site installation and storage of the disaster recovery copy was not ‘use’ of the software requiring separate authorization or licence (nor the payment of separate licence or maintenance fees). This was because it was not being used in the ordinary course of Racing & Wagering’s business.
Obviously big bucks are at stake here, and having some insight into corporate Information technology deals and agreements, I can only imagine that the relationship between Software AG and Racing & Wagering must have soured considerably for them to come to this.
Good to see sane heads prevailing in the courts though.
