Commonwealth wins disclosure in Attachmate copyright stoush

Setback for Attachmate as it pursues the Australian Defence Department for copyright infringement of its software.

The Federal Court of Australia has ordered software vendor Attachmate to provide discovery three depositions made in a US copyright lawsuit after a successful application by the Commonwealth of Australia.

The Commonwealth is responding in a suit involving the Department of Defence which used Attachmate’s Extra! IBM 3270 terminal emulation software. The department  had rights to use Extra! on 8000 machines but, following a 2009 audit, Attachmate came to a view that the software was being used on more machines and sued for copyright infringement.

The Court last month ordered discovery of the three depositions in a similar US case against Seattle-based health provider Health Net. Those depositions relate to how Attachmate incentivises its license compliance team and suggestions the incentive structure encourages them to “look the other way” while alleged copyright breaches mount up.

In its proceedings Health Net submitted:

“If the compliance team members catch over-installations early, when they are small and only in existence for a short period of time, the compliance team member earns no bonus. On the other hand, if the compliance team member sits back, and waits years, and then initiates an audit, the over-installations may have grown, and the number years of over-installations multiplied many times over.

“In that case, the compliance team members earn a substantial bonus, sometimes more than their salary. Thus, Attachmate’s compliance team members, like their employer, are motivated to sit back and not conduct audits that would reveal any lack of compliance, in favour waiting years while alleged damages are racked up.”

Invited to comment, Attachmate told ZDNet it does not comment on pending legal issues.

The depositions given in the Health Net case are from three current or former Attachmate employees.

The Commonwealth is arguing various defences, including delay and acquiescence, arguing Attachmate knew what was going on from a very early date and did nothing.

It is seeking information including licensing or copyright compliance revenue received by Attachmate since 1999.

While Federal Court Judge J Perram noted it was not clear to him at the time of making the discovery order whether the Health Net proceeding had been tried, it appears the matter may have been settled.

An online bio for Richard H. Zaitlen, a partner at US law firm Pillsbury, cites the case in which he represented Health Net. “On the eve of the trial in late 2010 the case was very favourably settled,” his bio says.

In a statement to ZDNet last week, Defence said the Commonwealth's case is still in its interlocutory stages with a discovery process and filing of evidence. It  is listed for further directions in the Federal Court on 12 November.

Thumbnail image is the Department of Defence headquarters, Canberra, by Nick Dowling.