Plaintiff Unable to Prove Copyright Infringement Liable for Attorneys' Fees: Eleventh Circuit | Practical Law

Plaintiff Unable to Prove Copyright Infringement Liable for Attorneys' Fees: Eleventh Circuit | Practical Law

In InDyne, Inc. v. Abacus Tech. Corp., the US Court of Appeals for the Eleventh Circuit affirmed the US District Court for the Middle District of Florida's award of attorneys' fees to copyright defendants that prevailed on summary judgment.

Plaintiff Unable to Prove Copyright Infringement Liable for Attorneys' Fees: Eleventh Circuit

by Practical Law Intellectual Property & Technology
Published on 29 Sep 2014 • USA (National/Federal)
In InDyne, Inc. v. Abacus Tech. Corp., the US Court of Appeals for the Eleventh Circuit affirmed the US District Court for the Middle District of Florida's award of attorneys' fees to copyright defendants that prevailed on summary judgment.
On September 24, 2014, in InDyne, Inc. v. Abacus Tech. Corp., the US Court of Appeals for the Eleventh Circuit affirmed the decision of the US District Court for the Middle District of Florida awarding attorneys' fees to defendants accused of copyright infringement after claims against them were dismissed on summary judgment (No. 14-11058, (11th Cir. Sept. 24, 2014)).
InDyne, Inc. sued Abacus Technology Corp. and two individuals (collectively Abacus), alleging that they infringed InDyne's copyright in software it had developed and used commercially prior to 2003. Before and after 2003, InDyne continuously revised and updated this software, and during discovery, it was unable to produce a version of its software as it existed at the time of the alleged infringement. As a result, the district court granted summary judgment of non-infringement to Abacus (InDyne, Inc. v. Abacus Tech. Corp., 876 F. Supp. 2d 1278, 1293 (M.D. Fla. 2012), aff'd 513 Fed. App'x 858 (11th Cir. 2013)).
After the Eleventh Circuit affirmed, the district court ordered InDyne to pay Abacus' reasonable attorneys' fees, pursuant to 17 U.S.C. § 505, basing the award on three factors. The district court:
  • Ruled that it was objectively unreasonable for InDyne to file a copyright infringement claim when it did not have a copy of the copyrighted material.
  • Found that InDyne's motivation in bringing the suit was questionable.
  • Explained that attorneys' fees would further the purposes of the Copyright Act because they would deter future litigants from suing for infringement of software copyrights without being able to produce the software code.
InDyne argued on appeal primarily that the district court abused its discretion in ruling that InDyne's decision to sue was objectively unreasonable. The Eleventh Circuit rejected this argument, explaining that without a copy of its software or a clear revision history, InDyne had insufficient evidence to show which parts of its allegedly copyrighted work were protectable. Accordingly, the district court did not abuse its discretion in ruling that InDyne's decision to bring suit without proof of an element of its prima facie case was objectively unreasonable.
This unpublished Eleventh Circuit decision is persuasive authority that should remind copyright holders, particularly software developers, to maintain copies of work they may wish to enforce against copyright infringers.