Pipe seeks to settle out of court with Market Clarity

Telecommunications company Pipe Networks is seeking to settle a legal battle with analyst firm Market Clarity out of court.

Pipe had alleged in April 2009 that Market Clarity infringed on Pipe's copyright in the reproducing of network maps.

The two companies have not shown up at the last two directions hearings at the Federal Court in Sydney.

According to the associate of Justice Emmett, presiding over the case, the two companies are both undergoing mediation outside of court.

Lawyers for Market Clarity told iTnews yesterday to call it back in "a couple of weeks" when it expected to get a result from mediation. Legal representatives from Pipe Networks did not respond to a request for comment.

Background

On April 1, Pipe Networks lodged an application at the Sydney Federal Court for injunctive relief restraining Market Clarity from reproducing, licensing, publishing or communicating to the public maps of Pipe Networks' fibre optic cables in its Australian Telecom Infrastructure Atlas 2009.

The application was lodged by Pipe after it had seen Market Clarity marketing its Atlas at the 2009 CommsDay conference in Sydney.

The applicant, Pipe Networks, demanded permanent injunction, damages or an account of profits, interest, delivery up of the infringing materials, declaration that the respondent engaged in misleading and deceptive conduct within the meaning of section 52 of the Trade Practices Act 1974 and costs.

Upon receiving the application the court ordered that Market Clarity was "not to reproduce, licence or publish material depicting the applicant's [Pipe Networks] fibre optic network by means of its Telecommunications Infrastructure Atlas or any other means until 6pm on Monday 6 April 2009".

Market Clarity said that although it had complied with court orders, it intended "to continue to reproduce in material form, communicate, publish and to authorise its licensees to reproduce in material form (for internal purposes subject to certain conditions) the Atlas or parts thereof or updated versions of the same".

"The applicant licensed the respondents to depict the applicant's [Pipe Networks] fibre optic network in the Atlas," Market Clarity's amended defence stated.

But Pipe Networks' statement of claim said otherwise.

"Each of the Atlas Maps was made without the license of the Applicant".

Market Clarity's defence said that co-founder of Pipe Networks, Stephen Baxter, attended at least two conferences where he had seen Market Clarity CEO Shara Evans present the maps featuring Pipe's fibre optic network.

The defence said Market Clarity had shown the maps at the Australia Network Operator Group Conference 2007 and the CommsDay Summit held on 16 April 2008 at the Swissôtel.

Pipe Networks representatives "did not object to the ... presentation of maps" at either presentation, Market Clarity said.

It said an email exchange between Pipe Networks' Stephen Baxter and Market Clarity's Shara Evans dated 20 November 2007 enclosed a list of exchanges through which Pipe's fibre optic networks passes.

"It [Market Clarity] did not need the applicant's [Pipe Networks'] permission to depict the applicant's fibre optic network," Market Clarity said.

The defence said that this was because "since at least 2007, the applicant was aware that the respondent intended to depict, and had depicted, the applicant's fibre optic network or parts thereof and that such depictions were licensed by the applicant".

However, Pipe Networks said that Market Clarity had "on many occasions" between 26 April 2007 and 21 August 2008 requested Pipe Networks to provide it with copies of Pipe's maps of its fibre optic network. Pipe said that requests made were "not granted".

In Pipe Networks amended statement of claim it added another claim that alleged Market Clarity had contravened the Trace Practices Act.

"The first respondent [Market Clarity] has engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of section 52 of the Trade Practices Act 1974 (Cth)," Pipe's statement of claim said.

Pipe said that the network maps published by Market Clarity did not depict "the true, current and full extent of its fibre optic network in 2009". It said that parts of the maps were missing and other parts showed fibre optic cable runs which were never constructed.

Pipe claimed Market Clarity had gleaned some of the data from maps Pipe had lodged with the Australian Stock Exchange  [PDF] on October 24, 2006 as part of its annual general meeting.