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Telkom, Marconi lose court case


Johannesburg, 23 Mar 2007

A South African court has found fixed-line operator Telkom and telecommunications company Marconi Communications guilty of infringing copyright.

The Witwatersrand High Court last week said Telkom and Marconi had infringed copyright and ordered them to cover the costs of the legal feud with software and hardware company Technical Information Systems (TIS).

TIS asked the court to intervene after it discovered its internally-developed software had been changed and was being supplied online by Telkom. TIS director Tim Hammerich says the company is now looking at a damages claim, although it is still quantifying the extent.

The company had an agreement in place with Marconi that allowed the telecoms company to supply a telephone management system, Man3 000, to Telkom, which then supplied it to end-users. However, the agreement ended in March 2005, and was not renewed.

The system, sold under the name Teltrace Soho System, has a software interface component and a hardware component - known as a buffer box - that interfaces with a company's PABX system to collect data.

Under the agreement, each time Marconi sold a PABX system to an end-user, it could install the hardware and software. TIS would provide free updates for the duration of the contract.

Rebranded software

TIS discovered, in February last year, that parts of the software had been rewritten and the rebranded update had been made available for download on Telkom's Web site.

The updates were made available after Marconi indicated it would not renew the contract, and was not interested in further updates from TIS. Marconi, however, continued to purchase buffer boxes on an ad hoc basis.

TIS said in court papers that Marconi rewrote aspects of the software, removing the licence agreement, its warranty, changing the installation wizard and all information relating to TIS and the update reminders.

In March last year, TIS informed Marconi and Telkom this was unlawful and demanded the companies cease their conduct. TIS then looked at Telkom's Web site and discovered that, despite the program being removed, it was still displayed by the HTML source code.

'Hardly conceivable'

TIS approached the court in April last year, alleging copyright infringement. However, Marconi and Telkom argued they still had the right to reproduce the software, manuals and associated aspects of the software. The companies also said their adaptations were not substantial and, therefore, not an infringement of copyright.

Judge A Gildenhuys disagreed, arguing the changes made by the companies, including the removal of references to TIS, were "not miniscule". Gildenhuys found TIS, which had entered into supply and confidentiality contracts with Marconi, also had a valid licence over the software.

"It is hardly conceivable that, subject only to the curbs contained in the supply agreement, the applicant intended the respondents to have a free right to reproduce, transmit and adapt the computer program," said Gildenhuys.

The companies denied in proceedings they had sold copies, but had merely provided updates to existing customers. However, while the judge could not ascertain whether this was the case, he contended there was a "reasonable" chance this was happening.

"Even if the respondents would have a licence to make copies of the program, they would still not be entitled to adapt the program," said the judge. The judge ordered Telkom and Marconi to stop infringing copyright, and to not reverse-engineer, or directly or indirectly distribute the software. He also ordered costs in TIS's favour.

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Telkom's dispute with Telcordia

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