“I am being asked to make a declaration that software, which I have not seen, does not infringe any copyright in another software product which I have not seen and in respect of which copyright has not been demonstrated.”.
These were the (amusing) words of a Judge in an interesting case between two software companies, one seeking declaratory relief over the claims of the other that its software might infringe their software. The case came out of an outsourcing agreement between the two whereby one company agreed to work on the other’s software. The company then ended the agreement and shortly afterwards released its own software in the same market.
The Judge went on to say: In my judgment, the absence of tested evidence brings this case close to the category of cases where the court is asked to answer a theoretical question. The court should not grant a declaration which it is not satisfied is in respect of matters which are proven; which is necessary, which will be useful and which is accurate and which is appropriate in the context of the case”.