The Defendant, Brian Duncombe, had been employed by the Plaintiff, Carolian Systems, for a period of approximately two years, and during that time had completely re-written Carolian’s performance management software product, Sysview.
After Duncombe’s employment with Carolian ended, he proceeded to design a piece of software called Assess, which was functionally similar to Sysview, such that it was a direct competitor. Carolian sued Duncombe and the distributor of Assess, Triolet Systems, for copyright infringement.
The trial judge found that infringement of Carolian’s copyright had not occurred, and in making this decision adopted a narrow and literal definition of the word “copy”, finding that while Duncombe may have relied on his own memory from his time working at Carolian, there was nothing to suggest that he literally copied the source code of Sysview in any way.
The Ontario Court of Appeal upheld this decision, deferring to the factual findings of the trial judge, and finding that a commonality of purpose and functional considerations between two pieces of software cannot support a claim for copyright infringement:
 The question of whether a substantial part of Sysview was reproduced by Assess is a matter of fact and degree (Ladbroke at p. 473). It is not for this court to embark on the question of substantial reproduction afresh (Designers Guild Ltd. v. Russell Williams (Textiles) Ltd. (Trading as Washington D.C.),  1 W.L.R. 2416 (H.L.) at 2418, particularly where the onus was on the appellant to prove substantial reproduction. No palpable or overriding error has been shown with respect to the trial judge’s factual conclusions: Hutton v. Canadian Broadcasting Corp.reflex, (1992), 41 C.P.R. (3d) 45 at 49-51 (Alta. C.A.).
Decided by the Ontario Court of Appeal on March 1, 2002.
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