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3rd Party Anti-Piracy Reports (like Smartflow) Are Admissible in Copyright Claims

In Trimble Solutions Corporation v. Quantum Dynamics Inc., 2021 FC 63 the plaintiffs brought an ex parte motion for default judgment in the context of copyright infringement in a software program. Relying on an infringement report generated by a third party anti-piracy software program, the plaintiff produced overwhelming evidence of unauthorized copying. The Federal Court accepted this electronic evidence of infringement, despite the plaintiffs not having access to the defendants’ actual devices on which the alleged copies were made.

The court elaborates on its findings:

“[60]  While it is, from a practical perspective, impossible to know who was using the devices at the precise times indicated in each incident report, there is more than sufficient identifying information to connect these devices with the individual and corporate Defendants. This includes the hostnames and usernames, as well as the e-mail addresses associated with these events, together with the geolocation evidence that connects the Wi-Fi locations for these events to the addresses of the individual and corporate Defendants. There is no doubt that the devices used for the infringing activities were under the control of the Defendants and located at their premises. That is sufficient (CCH at para 38).

[61]  I find that the evidence establishes that devices owned or used by Quantum Dynamics and/or Sharbel Tannus were repeatedly used to execute and open Version 20.1 of the Tekla Structures software although neither Defendant had a proper licence for its use. The e-mail from Mr. Tannus to the ITCA confirms this. I further find that each of these unauthorized use incidents constitute a breach of Trimble’s copyright in that program, because every time the unlicensed software was opened a copy of it was made on the Defendants’ device.”