Defendants Multiply Like a Computer Virus

BOISE (CN) – An auto auction company claims that after it fired a man for uploading pirated software onto company computers, the irate tech guy reported the company to a software trade group – for using pirated software. With defendants multiplying like electronic rabbits, the company wants a federal judge to apportion liability and damages for copyright infringement.




     Brasher’s Idaho Auto Auction says it fired its tech manager, defendant Robert William Gillespie, after he disclosed that he had uploaded unlicensed copies of Adobe software onto three company computers.
     Utah-based Brasher’s bought Idaho Auto Auction – a defendant – in 2007.
     Brasher’s claims that “the software was loaded onto the machines prior to their acquisition from defendant Idaho Auto Auction. On information and belief, Idaho Auto Auction installed and removed at least some of the allegedly infringing software previous to Brasher’s acquiring the used computers.”
     In May this year, the Software & Information Industry Association – the lead defendant in this case – contacted Brasher’s, “requesting to run an audit of all software on Brasher’s computers based on the communication of an unidentified third party who claimed that Brasher’s had illegal copies of software on its machines,” Brasher’s says.
     Brasher’s says it believes that after it fired Gillespie, “he informed SIAA that Brasher’s had pirated software on their computers.”
     But “Despite repeated requests, SIIA has failed to identify the person who made the claim about Brasher’s,” according to the complaint.
     The SIIA, which provides intellectual property protection for hundreds of software companies, including fellow defendants Adobe, McAfee and Symantec, claimed to have found additional unlicensed products, including programs from Corel, McAfee and Symantec.
     But Brasher’s said a seventh defendant – New Jersey-based ADP – provided some of the infringing software.
     Brasher’s says it could not find some of the software SIIA claimed to have found on its computers and that other software was obtained legally.
     “Brasher’s independently searched for this software on its computers, but was unable to locate some of the software and believed that it had proper licenses for the others,” the complaint states. Brasher’s claims that “SIIA’s auditing program searched the registry of Brasher’s computers, displaying software that was once on the machine but that was no longer present.”
     Brasher’s denies installing any of the infringing software.
     “Rather, it is apparent that that software was loaded onto the machines prior to their acquisition from defendant Idaho Auto Auction,” Brasher’s says. It claims that “Idaho Auto Auction installed and removed at least some of the allegedly infringing software previous to Brasher’s acquiring the used computers.”
     Brasher’s says the SIIA refused several offers to settle for an amount well above the retail price of the software.
     “For example, Brasher’s offered to settle with SIIA for $12,500 despite the fact that the retail price of the software allegedly infringed is less than half that amount,” the complaint states. “Moreover, Brasher’s has provided evidence that it had licenses for some of the allegedly infringing software.”
     “The retail price of market value of the additional software that was ostensibly on the computer registries when Brasher’s acquired the computers is approximately $1,000,” the complaint states. “Despite the fact that the settlement proposals have been more than twice the retail price of the allegedly infringed software, and even though Brasher’s had no idea that the software was on the machines, SIIA continues to reject settlement offers and demand excessive settlement amounts despite the lack of intent on the part of Brasher’s.”
     Brasher’s seeks declaratory judgment that it was an “innocent infringer.” It also asks the court to apportion liability and damages for infringements among Brasher’s, Idaho Auto Auction, Gillespie and ADP, and to order Idaho Auto Auction, Gillespie and ADP to pay their share of the damages.
     Brasher’s is represented by Corey Rippee with Eberle, Berlin, Kading, Turnbow & McKlveen.

%d bloggers like this: