Trumpet Software Pty Ltd v Ozemail Pty Ltd

Trumpet Software Pty Ltd and Peter Robin Tattam (the applicants) brought proceedings against OzEmail Pty Ltd, Sean Martin Howard, and Dani Lynette Thompson (the respondents). Trumpet Software Pty Ltd (Trumpet) is a company that develops, markets, distributes and supports computer software, including the program Trumpet Winsock. Trumpet Winsock is a communications program for establishing a connection with an Internet Service Provider (ISP), which in turn allows access to the Internet. In April and August 1995 the first respondent OzEmail Pty Ltd (OzEmail) published Trumpet Winsock version 2.0B by arranging that it be distributed in diskette format, along with some other programs, as a give-away inserted in copies of computer magazines. Trumpet claims that OzEmail thereby infringed its copyright in Trumpet Winsock 2.0B and also contravened provisions of Part V of the Trade Practices Act 1974 (Cth). The issues which have arisen in this trial are (i) whether Trumpet revoked any licence OzEmail might have had to publish the software, (ii) if not, whether OzEmail breached any conditions of its licence, and (iii) whether OzEmail misrepresented to readers of the magazines its relationship with Trumpet and its rights in relation to the software. The trial has been concerned only with questions of liability. The court found that the licence had been revoked, that OzEmail had breached the terms of the licence, and that OzEmail had contravened the Trade Practices Act. The court orders that within fourteen days counsel bring in signed minutes of orders. The directions hearing be adjourned to a date to be fixed by the Tasmanian District Registrar after consultation with the parties. Liberty to apply is reserved. The respondents (other than the third respondent) pay the applicants' costs to date including reserved costs, such costs to be taxed and paid forthwith pursuant to O 62 r 3(2). The application against the third respondent is dismissed with no order as to costs.