Brasher’s Idaho Auto Auction vs. SIIA, et al.


In Brasher’s Idaho Auto Auction vs. Software & Information Industry Association, Adobe Systems, Corel, McAfee, Symantec, Idaho Auto Auction, ADP, and Robert William Gillespie filed in U.S. District court for the District of Idaho (Case #1:11-cv-00310-REB), the plaintiff, a target of an SIIA audit, is asking the court to determine who is legally responsible for the unlicensed software found on its computers during the audit.

The outcome of this Complaint for Declaratory Judgment of Non-Infringement and Judicial Finding of Damages filed on July 7, 2011 should shed some light on how to apportion legal liability for copyright infringement damages related to business software usage.

Brasher’s purchased the assets of Idaho Auto Auction, which included some computers that contained unlicensed software. Plaintiff alleges they were unaware of this. Unfortunately, lack of knowledge or intent is usually not a good defense to a copyright infringement claim where liability attaches without regard to fault or knowledge.

Plaintiff is seeking indemnity and/or contribution from Idaho Auto Auction; ADP, a company who provided software to Brasher’s and/or Idaho Auto Auction which SIIA claims to infringe the copyrights of its members; and its former IT administrator, Gillespie, and presumed informant for his role in installing the software.

The case against the informant is always a tough call. Most unemployed IT guys are usually not viable defendants. It will be interesting to see how receptive the court is to Brasher’s claim that the former IT administrator should be individually liable for software he installed in violation of the companies policy.

Brasher’s is suing the SIIA for continuing to reject their settlement offers and demanding excessive settlement amounts despite lack of intent on their part. The SIIA’s multiple of MSRP approach to software audits is under direct attack. In our opinion, the court may be receptive to Brasher’s claim that an arbitrary multiple of MSRP is not appropriate for calculating damages in software copyright infringement cases.

This case highlights the importance of due diligence and properly documenting asset transactions involving the sale of computers with software installed.

How the court apportions liability for any acts of infringement between Brasher’s , Idaho Auto Auction, Gillespie, and ADP may affect future software litigation cases.

Complete copy of complaint.