NSW Police has cast doubt over the ownership of the software that it has been accused of pirating in an Australian Federal Court case brought on by Micro Focus.
UK-based multinational software company Micro Focus had initially taken NSW Police to court in 2010, claiming that the law-enforcement agency had been illegally using its software, ViewNow, without licences. It is seeking AU$10 million in damages.
The NSW Ombudsman, the Department of Corrective Services and the Police Integrity Commission were also originally embroiled in the case, after it was alleged that NSW Police shared the unlicensed software with the staff there. Those agencies chose to settle out of court, an issue that has raised questions as to whether settling was an admission of guilt.
The vendor has since launched fresh allegations against NSW Police, claiming that the law-enforcement agency had tried to replace pirated ViewNow software with another batch of pirated Micro Focus-owned software. It is gearing up to file a new lawsuit very soon.
In a Federal Court directions hearing yesterday, NSW Police's legal representative John Hennessy laid out plans to undermine Micro Focus' case by attempting to dispute the ownership of the ViewNow software, which was previously named NS Portfolio.
Micro Focus had tried to establish that the software concerned was developed by NetSoft, which was acquired by its competitor, NetManage, in 1997. NetManage was then bought by Micro Focus, with the acquisition completed in 2008, and NS Portfolio was subsequently rebranded to ViewNow.
However, when Hennessy asked for the schedule that details when exactly the intellectual property and copyright of products would have been transferred to Micro Focus post-acquisition, the vendor said that the document does not exist.
Hennessy noted that contextual material submitted by Micro Focus' legal team details the supposed transfer of ownership for the NS Portfolio product. NSW Police is now seeking to obtain the documents that back up the claim of ownership through the discovery process.
"We must have those documents," Hennessy said in court. "The material must be available."
Micro Focus' legal representative Richard Cobden SC argued that raising doubts over whether the vendor is indeed the owner of the software concerned is baseless, and urged the presiding judge, Justice Jagot, to deny the request for discovery.
He said that the fact that NSW Police never questioned the software's ownership when it signed a software licence agreement back in 1998 for the use of NS Portfolio suggests that there is no legitimate doubt over the software's ownership
Micro Focus Australia and New Zealand managing director Bruce Craig labelled the discovery a "fishing expedition", stating that the company has provided NSW Police with all of the relevant documentation. He said that NSW Police just wants to nitpick through more evidence in a bid to stall the case.
Justice Jagot questioned the scope of the discovery process by NSW Police, but did not outright deny the agency's request. Instead, Jagot advised Hennessy to come back with a more targeted request for discovery, such as for specific documents.