Software AG (Australia) Pty Ltd v Racing & Wagering Western Australia

This was an appeal from the decision in Racing & Wagering Western Australia (RWWA) v Software AG (SAG) Australia Pty Ltd [2007] FCA 1345.

The appeal concerned the interpretation of a software licence agreement and the interpretation of section 47F of the Copyright Act 1968 (Cth).

The Court:

• confirmed that RWWA was not breaching its software licence agreement with SAG by copying and testing mainframe computer system software at a disaster recovery site (DR Site) maintained by a third party. It held this on the grounds that Software AG (Australia) Pty Ltd (SAG)'s construction of the phrase "for emergency restart purposes" would result in a meaning that would be unreasonable or inconvenient.
  

• held that the declaration made by the primary judge that "[RWWA] is entitled to test the disaster recovery copy pursuant to the terms of the Licence Agreement and in any event pursuant to section 47F of the Copyright Act 1968..." be varied by deleting the words "and in any event pursuant to s 47F of the Copyright Act 1968".  It stated that testing security within the meaning of section 47 should be confined to testing the original to ascertain its security from unauthorised access or other invasion.  It rejected RWWA'S contention, which had been adopted by the primary judge, that testing the security of the original copy extends to what was done at the DR Site, namely testing of the DR Copy to ensure that the System would be capable of being restarted without the loss of data.
  
  The appeal was dismissed.
  
  More:
  Software AG (Australia) Pty Ltd v Racing & Wagering Western Australia [2009] FCAFC 36 (20 March 2009)