copyright infringement of a web application

If you are worried about infringement or your work has been copied and you want to take action.
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tommot
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copyright infringement of a web application

Post by tommot » Thu Mar 10, 2011 9:02 am

Hi, I wondered if anyone here could help me out..


Basically a I wrote a web app a couple of years ago that allows customers to design something online, it prices it as the customer changes options, and there is a checkout button, so the customer can pay there and then.

anyway, around 5-6 months ago, a competitor brought a similar application online, and with some investigation, I found that it was using large chunks of my code (basically they had just downloaded the JavaScript and edited it here and there)

They reduced the pricing functions by around 10% and were undercutting us.

Now this was probably online for a week or so before I found it. I called them and spoke to the MD, it was taken down immediately.

Then I spoke to a lawyer, who sent a letter asking them to put in writing that they wouldn't be using my code anymore etc. and reserving the right to pursue them for damages (lost custom).

In the end I went to their offices for a meeting, their MD told me he would put it in writing that they wouldn't use my code in future and post it on, Now he never did this, so I never got it in writing.


Anyway, This week, their web app came back online, more heavily modified, and with the code hidden away better, but it is still my code.

I called them and they took it down straight away.


Now I don't know what to do to stop them doing it again, I don't want to keep playing cat and mouse. I spoke to a lawyer, who said that if it went to court, it should be a pretty straight forward win for us, but the costs could escalate quickly (employing experts etc).

Also if it did go to court, when we won, the other party would have to pay a proportion/all of our fees right, but what happens if they cant afford and it bankrupts them (I don't want this to happen, just trying to figure out who covers the fees)

I just find it hard to believe that I can sit here doing everything right, and end up having to shell out thousands due to others actions..

I hope someone can help me out on a cost effective way forward to prevent this happening again.



Thanks,

Tom.

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AndyJ
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Post by AndyJ » Thu Mar 10, 2011 2:31 pm

You have certainly approached this the right way, by getting a lawyer to draft the letter to them, and that won't have been cheap! As your lawyer probably expliained to you, your basic idea is not itself protected by copyright, just the implementation of it, namely the code you have written. It would seem that this other site seem determined to use your idea (and some of your code) but are trying to reduce the amount of your code they re-use, presumably in the hope that this will not amount to 'subsatntial' copying which is one of the tests for infringement. However you have a major advantage in the fact that they have acknowledged using your code in the past and given verbal undertakings not to further infringe, which will strengthen your case should the matter have to go to court.
As you have said, going to court is both costly, with no guarantee that full costs will be awarded to you if you win (and the defendant may be made bankrupt by the damages), and also time-consuming. Some cases can take a year or so to get listed, especially if you opt to use the Patents County Court, which as its name implies operates like a County Court (with a cap on costs) even though Copyright issues can normally only be heard in the High Court. Unfortunately contingency fee arrangements (no-win, no-fee) cannot be used in IP cases and similarly legal costs insurance is also difficult for this type of case.
But I think there are a couple of options to try before going down that route. The first is mediation. Since the other company appear to be partly co-operative, they may be amenable to going with you to a mediator, which is just another way of saying arbitration. The problem with this is that the proces works on both sides being prepared to compromise, and as I understand it you neither wish nor intend to give ground: why should you as it is your intellectual property which has been infringed?
The second option might be to licence the other company to use your code. This would mean they would have to pay either a fixed sum, or a royalty based on, say, their sales in exchange for using your code legally. Whilst this would still mean they might be taking business from you, you would be earning something from the deal, whereas if they managed to re-write their own code so that none of yours was used, they could compete and you would gain nothing. The other advantage of having a licensing arrangement is that this is then an enforceable contract, on which if they default, it is much simpler and cheaper to get a judgement against them
The third option is somewhat similar, in that it would put in place a short-term licence: you simply invoice them for a suitable sum of money to cover your legal expenses and losses in trade to date plus an uplift to cover future losses, in exchange for a licence to run from the date you first detected their use of your code, to some point in near future - say 6 months in total - and if they fail to pay as seems likely, you can take the debt to your local small claims court.
Or finally, you can continue to use a lawyer to pursue the matter. He will no doubt point out that the longer they persist in stalling, the greater will be the evidence of aggravated infringement, which in turn may lead to increased damages, if the matter goes to court. Furthermore you should be able to get an interim injunction prior to a full court hearing, to prevent them using your code. However if you follow this course of action, not only will they need to give the undertaking you seek, but also agree to reimburse your legal costs so far.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

tommot
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Post by tommot » Thu Mar 10, 2011 2:41 pm

Andy,

Thanks for the reply, very useful/comprehensive!

Basically their web app would be unusable without recreating a large bunch of my code, which they haven't done, just copied mine.

Their newer version doesn't seem to have any less of my code, they were just more thorough in hiding it by renaming variables, obsuficating (sp?) the code, and hiding the code in places you wouldn't usually look... (which is odd, they must know that as a web developer... I'm going to find it?)

I'm not sure how cooperative they will be... maybe their MD is employing someone to write it, and doesn't appreciate that it is ripped off?

I will let you know how I go on.

Thanks again.

Tom.

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