Independent Creation Paper Trail To Fend Off Copyright Suits

independent creation copyright

independent creation copyright

When sued for infringing someone’s copyrighted software, one efficient way of breaking short the suit is to have strong evidence on file that you, or your company, created the software. Unlike patent law, copyright law recognizes the concept of “independent creation.” In a copyright suit, plaintiffs must show their copyrighted works were copied. So if you independently created the software at issue, obviously, you did not copy it. This would stop the suit short. Accordingly, keeping adequate record of your software creation efforts can be very helpful to stave off copyright infringement claims.

In Kwan Software Eng’g, Inc. v Foray Tech, the Defendant, Foray Technologies (“Foray”) obtained an early win in the copyright infringement suit that opposed them to VeriPic, the Plaintiff. VeriPic “provides digital evidence-related software to police and fire departments, as well as to other entities that need to store and retrieve photos, video, and audio files ” and so does its competitor, Foray. VeriPic claimed that a Foray employee obtained and reproduced a copy of their software. However, Foray proved that wasn’t so. Not only did they have strong evidence of independently creating their software, they also showed they never had access to a copy of VeriPic’s software in the first place. As a result, the court held for Foray at the early summary judgment juncture.

Adequate Record of Independent Creation

What Foray did right is cultivating a strong record of independent creation over the years. It had an archived version of the preliminary software dating back to 2005 and relied on that to show that no substantial change had occurred to the pertinent portion of its software since then. The evidence was particularly strong in light of VeriPic’s assertion that Foray’s illegal copying took place in 2008. Accordingly, the court concluded, “the undisputed evidence before the Court shows that Foray independently created its Image Calibration Utility software by at least 2005, which is well before the time that VeriPic asserts the accused software was modified.”

The other thing Foray did right was not obtaining copies of its competitor’s software and source code. This allowed them to successfully argue that Foray had not accessed VeriPic’s software.

Access & Similarities to Show Copying

Because direct proof of copying is so uncommon, the usual way of demonstrating copying is to show that the defendant had (1) access to the copyrighted work and by; (2) demonstrating substantial similarities between the parties’ works, which taken together work as an inference that copying took place. ((Unless the copyrighted works are strikingly similar to each other, evidence of both access and similarities are required.))

No Employee Received A Copy of VeriPic’s Software

Foray had strong evidence that their employees never obtained a copy of VeriPic’s software or its source code.  Obviously, if Foray never had access to the original work, they could not have copied it. ((In some instances access is presumed even without evidence that you, or someone at your company, accessed the copyrighted software. But that is limited to instances where the work is widely disseminated and freely available. That was not the case in Kwan Software Eng’g, Inc. v Foray Tech.))

Nevertheless, two Foray employees did see VeriPic’s software in action when some VeriPics customers allowed them to watch, but not use, the software. But, simply observing the use of the software does not evidence the kind of access that matters for copyright infringement purposes. Indeed, for access to lead to an inference of copying it must mean access to a copy of the software and its source code; not observable access to the output available to customers – Obviously, this kind of access does not help reverse-engineer the software. Hence, the court found no access took place.

Accordingly, it is good practice to have a company-wide policy to restrict your employees’ access to competitors’ software. If access cannot be shown, a copyright infringement can be quickly thrown out.


Of course, instituting such policies does not always make sense. For instance, if a given source code can be easily found on the Internet, restricting access would not help one bit – because in such a case access may be presumed, depending on how freely accessible and widely disseminated the software at issue is. And, certainly, reverse-engineering a software is sometimes appropriate. Also, remember that independent creation may stave off copyright infringement suits, not patent suits.

This case illustrates how company-wide policies of (1) keeping a paper trail of the software- creation process and (2) restricting access to similar software can be instrumental in getting rid of frivolous copyright infringement claims early.

Kwan Software Eng’g, Inc. v Foray Tech., LLC, 2014 WL 572290 (N.D. Cal. Feb. 11, 2014)

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