No summary judgment in software copyright case

Douglas Campbell QC, sitting as a Chancery Division judge, refused to give the claimant summary judgment in Oysterware Ltd & Intentor Ltd [2020] EWHC 2125 (Ch) (not yet on Bailii: I am indebted to the report from Practical Law) although it might have been another story had the claim been formulated differently.

The claimant supplied hardware, software, and support to the defendant. When the relationship came to an end, they sued for breach of contract, breach of confidence, and infringement of copyright, alleging that the first defendant had copied the design of what was referred "the Embedded Product." 

The Embedded Product was described as a single homogenous runtime image (a runtime image being, as I understand it, executable Java code that does not need an accompanying Java Runtime Environment distributed with it, which makes it much smaller and more easily distributed). It consisted of computer code that emanated variously from Microsoft, third party suppliers and the claimant, but the defendants characterised it as a general-purpose computer running Windows XP. Of course the claimant owned no copyright in the operating system or in the third party software, but that is not really the point; no doubt recognising this fact, they had claimed that copyright in the design of the Embedded Product, rather than copyright in the embedded product itself, had been infringed.

So what was that design? A former employee of the claimant gave evidence that the embedded product had to be considered as a whole (hence the "single homogenous" rubric). This embraced the specific design of the runtime image and the compilation of components. But the claim said that the runtime image was the copyright work; it said nothing about copyright in a compilation. (I find myself imagining the judge, indeed any judge, thinking about how he could have drafted the claim - I doubt they can resist doing so, although of course that in itself is not grounds for a decision.)

The employee explained that the design involved skilled choices, which sounds like a last-ditch effort to rescue a drowning copyright claim; crucially, that was a matter for the court. The pleadings had left subsistance as a matter that needed a trial, precluding summary judgment.

Whether what the defendants had copied was what conferred onginality on the Embedded Product was another matter that was that was not suitable for summary disposition. Because the claimant had failed to identify what the product's structure was and whether it involved intellectual creativity, they were not going to get summary judgment.

The same litigation has already given us a statement of the principles to be applied in an application to strike out: [2018] EWHC 611, which is also missing from Bailii.