Software vendor Attachmate has accused the Department of Defence of using its software outside agreed license terms by uploading it onto a shared network.
In the Copyright Tribunal this afternoon, counsel for the vendor Stewart Anderson SC accused the department of breaching section 183(5) of the Copyright Act by not revealing the extent of alleged use of the software 'beyond the scope of what we say the license is'.
The Department of Defence disputed that it was in breach. It was due to file a response to the allegations by June 9, 2011.
"We understand what's taken place is that the software, which Attachmate Corp gave the Commonwealth a license to use, was loaded up to a network of computers, and from that network that members of the Defence Force can access the software," Anderson told the Tribunal.
"We need to understand better the extent of the use made available by the Commonwealth loading that software onto a network."
Anderson said that Attachmate had been seeking a response from the department to its concerns since 2008.
He said that the vendor commissioned KPMG to audit the Defence computer system in November 2009 "as to the extent of use of the software".
According to the Department's counsel Michael Colbran QC, the audit uncovered some "65,000 potential reproductions, [and] 4,000 actual reproductions", although he alleged that Defence had difficulty discerning the exact claims being made against it by Attachmate using the KPMG data.
"What is the reproduction asserted against us?" Colbran asked the Tribunal.
He raised as a potential difficulty to the proceedings a Defence security policy to re-image all its machines every six months.
"Each six months the department wipes its computers for security purposes and reinstalls such software [as Attachmate] as required," Colbran said.
"No records have been kept going back to 1999 of the thousands of computers in use within the department."
Colbran won the right to lay on a response to Attachmate's allegations on section 183(5), despite protests from the vendor's counsel who had sought an order for an affidavit to be filed by Defence instead.
"We intend [in our response] to explain what we did once we received the five compact discs which provided the basis for the 8,000 licenses we agreed to purchase," Colbran said.
"Seeking an affidavit of this kind is akin to using a sledgehammer to crack a nut".
Justice Arthur Emmett attempted to have the matter relisted for directions in Melbourne, "which is better than doing it by this electronic device [videolink] so I can stare in your eyes and have an idea of what you're really saying," he said.
Neither counsel could reach agreeable dates.
Further directions were listed for 15 June, 2011 in Sydney.