Navitaire Inc. v Easyjet Airline Company and Another
| Jurisdiction | England & Wales |
| Judge | JUDGE PUMFREY |
| Judgment Date | 11 March 2005 |
| Neutral Citation | [2003] EWHC 3487 (Ch),[2005] EWHC 282 (Ch),[2004] EWHC 1725 (Ch) |
| Docket Number | Case No HC 2002 C01268,Case No: HC 02 C 01268,Case No: HC02 C01268 |
| Court | Chancery Division |
| Date | 11 March 2005 |
[2003] EWHC 3487 (Ch)
Mr Justice Pumfrey
Case No HC 2002 C01268
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Court 55
Royal Courts of Justice
The Strand
London WC2A 2LL
HENRY CARR QC (instructed by Field Fisher Waterhouse) appeared on behalf of the Claimant.
RICHARD ARNOLD QC (instructed by Herbert Smith) appeared on behalf of the Defendants.
This application by the defendants raises a difficult procedural problem in this complex action for infringement of copyright. The subject matter of the application is to strike out concern of the allegations of infringement of copyright on the grounds that, in summary, the allegations are so incoherent as to be untriable. The claimant is a software developer.
It has developed a set of programmes for airline booking systems. One of these programmes, which is primarily concerned with the basic booking function, is called OpenRes. This software, along with other software, was licensed to the first defendant, who is a well known low cost airline, until its replacement by a system written substantially by the second defendant but with the assistance of the first defendant, the second defendant, Bulletproof Technologies Incorporated, being a software developer.
The programme in the defendant's suite of programmes alleged to infringe the copyright which must for present purposes be taken to subsist in OpenRes is called eRes.
There is no dispute that it is written in a number of computer languages and that the actual code, in the sense of what appears on the page, bears no resemblance to that of OpenRes. When I say "no resemblance", I am for this purpose ignoring certain code which creates the appearance of certain screens and I am ignoring also a degree of similarity in the names of various variables in the defendant's database.
What is said is that the defendants closely studied OpenRes and produced a system which operates in the same way from the user's point of view. When I say "in the same way", I do not mean in the same way in general terms, but that with a couple of minor variations, the two programmes are, from the point of view of the user, who will be perhaps a booking clerk in a call centre, identical.
The functional design of OpenRes from the point of view of such an user consists of such matters as the functions available to the user, the screens which are displayed to the user and the steps which the user takes to book a passenger onto a flight and clear his or her credit card payment. Both programmes provide further functions such as the issue of boarding cards, the booking on of baggage and so forth.
Leaving the pleadings to one side, the claimant says the manner in which the claimant's software operates is the result of a number of design decisions taken by first the actual writers of the software, or coders, as the code was being written, and secondly by persons whom it is convenient to refer to as systems analysts, although their function and the nature of their involvement has not yet been fully elucidated. The decisions as to the manner in which the software is intended to operate are said to underpin the order in which and the structure of the procedures and the routines and screen displays go up to make the code exist and operate.
What is said is that if the defendant's software, however written, adopts this same functional structure as a result of the study given to the manner in which OpenRes works, that is to take a substantial part of the source code of OpenRes in a manner broadly analogous to appropriating the plot of a book. In the same way that copyright subsisting in a literary work may be infringed by a change in medium in which all that is taken is the plot, so also, it is said, may the copyright in computer software be infringed when the functional structure of the code is appropriated by writing different code which, put crudely, works in the same way.
The correctness of this view of the law of infringement of copyright and the manner in which such an allegation of infringement of copyright is, to use a useful term, fact sensitive, cannot possibly be decided on an application such as the present. The real basis of the objection to the claim as it is presently constituted is that the claimant has chosen to describe the substantial part of the work alleged to be infringed by the vague and ambiguous term "business logic", which has been used in the case in various inconsistent ways.
The result, says Mr Arnold, Queen's Counsel on behalf of the defendant, is that it is quite unclear what the nature of the case is that the defendants have to meet. The term "business logic" has taken on a life of its own. It is said to have a certain content and from place to place in the pleadings and the witness statements, the nature of that content is, so Mr Arnold says, described inconsistently. At one place it is suggested that the term embraces quite detailed aspects of the code. In other places, those aspects are not mentioned while others are added. The result is said to be an incoherent and embarrassing case so much so that it should not be allowed to go to trial in its present form. The trial in question is scheduled to start on or about 3rd November.
Before turning to the detail of the case so far as it is necessary to do so, I should make it quite clear that I am in sympathy with the basic thrust of Mr Arnold's objections. He, however, is understandably anxious to demonstrate that the prognosis for this patient is extremely gloomy, so much so that a measure of euthanasia would now be appropriate. I, on the other hand, take the view, as I made clear during the hearing, that there is here a legitimate case for trial which requires properly to be set out and pleaded. With this in mind, I have been anxious in the hearing before me, to force the case into a shape which is sufficiently well defined to enable it to be tried without injustice either to the claimant or to the defendant. Before setting out my conclusions, I should explain a little of the legal context.
Copyright subsists in software as a literary work by virtue of Section 31 D of the Copyright, Designs and Patents Act as amended by the Copyright Computer Programmes Regulations 1992. These regulations are made under the European Communities Act in 1971 and represent transposition into domestic law, Council Directive 91/250/EEC on 14th May 1991, on the legal protection of computer programmes, a harmonising measure.
To protect a computer programme as a literary work encumbers this field of copyright with many accretions(?) which the protection of literary works has attracted down the years, such as the protection of plots which have no direct relevance to computer software as such at all, but which may provide a valuable jumping off point for the formulation of a modern system of protection for computer programmes by a process of reasoning by analogy or by similarity.
Computer programmes are curious literary works in that they are the prescriptive expression of the manner in which a completely deterministic machine is required to operate. Something more different from an imaginative work of fiction which attracts exactly the same protection it is difficult to imagine.
How this protection operates in English law, once one leaves the literal copying of code, is not well worked out and I am not myself conscious that the meaning and effect of the Directive and its recital have been considered in detail in any judgment. Anybody who is concerned about how far we have got in this area of law needs only to consider the judgment of Mr Justice Jacob in IBCOS Computers v Barclays Finance Limited 1994, Fleet Street Reports 275, which points out with characteristic clarity exactly the uncertain areas of the law here. Be that as it may, copyright is infringed by anyone who, without the consent of the owner, does the acts restricted by the copyright, set out in Section 16 of the Act. It is also an infringement to do a restricted act in respect of a substantial part of a copyright work and it remains a infringement whether that act is done directly or indirectly.
Initially the business logic of the OpenRes system was pleaded as a copyright work. I have to say that this seems to me to be absolutely unsustainable and I am not surprised that an amendment was proposed on 31st January 2003 and the amendment was actually carried out in February to replace the pleading of the business logic by a pleading of the code itself as a copyright work and to specify the acts of infringement as, to use an old fashioned phrase, reproduction of a substantial part of that work. Most unfortunately, it was pleaded that the defendants had copied the code at the business logic level of abstraction and it is those words which have given rise in substance to the present problems. I have to say, without going through the material in detail since on this application to discuss this material in detail might run the risk of pre-empting various decisions which ought to be made at trial, that on the material as it presently exists, there is substantial doubt whether it is fair to say there is any such single level of abstraction. Any lingering doubt can be removed by considering the matters relied on by the claimant as reproductions of a substantial part.
These are, in substance, what I shall refer to as walk throughs of the operation of the claimant's system as perceived by a user. Infringement is...
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