This Federal Court decision concerned the calculation of an account of profits.

The proceedings related to a training manual used in training sessions conducted by the second respondent (Josef Wallz) for the first respondent (Reed Business Information Pty Ltd). The applicant claimed that the training manual infringed its copyright.

The action against the first respondent settled, and this decision concerned the action against the second respondent, who had consented to various orders on 18 April 2008, including discovery as to profits. The applicant elected for an account of profits rather than damages.

The second respondent argued that, for the calculation of an account of profits, payments for his time in preparing and presenting the seminars should be deducted from the amount received.

The Court rejected this argument and awarded $2,311.69 (gross receipts from the seminars less printing costs and GST).

Tenderwatch Pty Ltd v Reed Business Information Pty Ltd [2008] FCA 931 (19 June 2008)

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The Federal Court has reduced a fine for copyright infringement relating to copying and distributing infringing DVDs.

On 29 January 2008, the Newcastle Local Court had convicted Mr Plunkett of eleven copyright infringement offences and imposed a fine of $22,070 for making and selling unauthorised copies of DVDs.

On appeal, taking into consideration the “devastating consequences” Mr Plunkett had suffered and would continue to suffer from his offences, the Court reduced the fine to $2,200.

Plunkett v Commonwealth Director of Public Prosecutions [2008] FCA 908

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The Federal Court has found that Boutique Homes did not infringe copyright by developing project home plans similar to Inform’s building designs.

Evidence of Boutique’s independent design process, incorporating features common to many buildings (including a central staircase surrounded by wet areas), negated the probability of copying.

Inform Design and Construction Pty Ltd v Boutique Homes Melbourne Pty Ltd [2008] FCA 912

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The Federal Court has dismissed an appeal from a Federal Magistrate Court decision that the respondent (Mr Riedle) was an independent contractor rather than an employee of Centrestage Management Pty Ltd. As a result, the company did not own copyright in the source code of software Mr Riedle updated.

Centrestage Management was also unsuccessful in arguing that it had an implied licence to access and use the source code, and that Mr Riedel was obliged to provide the code to it because he was contractually bound.

Centrestage Management Pty Ltd v Riedle [2008] FCA 938

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This is a Federal Court appeal from a decision of the Local Court of Western Australia in which a house designer, Mr Gregory Hille, and builder, Atrium Homes, succeeded in an action for copyright infringement of customised project home plans.

Atrium modified Mr Hille’s “Lakeview” house design for Mr Roger Gaunt who, before moving to Western Australia, gave power of attorney to his brother, Mr Richard Gaunt. The dispute arose when Mr Richard Gaunt provided the plans to Beaumonde Homes, a competitor of Atrium, who used the plans to build the house for Mr Roger Gaunt. The Magistrate found that Mr Roger Gaunt and Beaumonde infringed copyright in the plans, and awarded damages of $15,450 to Atrium and $1,500 to Mr Hille.

The Court held that it was open for the Magistrate to find, and the Court agreed, that Mr Richard Gaunt as agent for his brother had, with authority, colluded with Beaumonde to copy the plans.

The appellants failed in their arguments that Atrium’s ownership of copyright in the relevant drawings was not tested at trial and that the Magistrate erred in finding that the appellants infringed Mr Hille’s copyright.

Mr Roger Gaunt’s contention that Beaumonde indemnified him completely was dismissed; the Court upheld the Magistrate’s order that Beaumonde indemnify Mr Roger Gaunt for 50% of his liability for damages and costs.

However, the Court found that there was no agreement for the construction of the house by Atrium and held that the Magistrate had incorrectly awarded damages based on the loss of profit that would have been earned from building the house. Damages awarded to Atrium were reduced to $9,500.

To view the case, click here.

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The Federal Magistrates Court has decided a computer software infringement dispute in favour of the software publisher, Microsoft Corporation.

Mr Rodney Mayhew, identifying himself as one of the “Official Microsoft Windows Vista Beta Testers”, offered and sold unauthorised copies of Microsoft Windows XP and Microsoft Office XP loaded onto a computer and supplied on CD-ROM.

The Court found that Mr Mayhew’s conduct contravened s 38(1) of the Copyright Act. Compensatory damages of $1,126.35 were awarded to Microsoft.

Neither Mr Mayhew nor his “claimed representative”, Mr Leonard Clampett, expressed a willingness to accept an open offer from Microsoft to settle the proceedings, nor did they file a defence with any detail.

The Court considered the copyright infringement to be deliberate and flagrant, that there was a need to deter future infringements and that both Mr Mayhew and Mr Clampett frustrated the Court system in the way they had dealt with the claim and the proceedings. Additional damages of $12,000 were consequently awarded.

Microsoft Corporation & Ors v Mayhew [2008] FMCA 121 (12 February 2008)

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