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ARTICLE · 25 APRIL 2017

Downloading Pirated Software Without Installing It May Constitute Infringement

McDermott Will & Emery
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Addressing the de minimis requirement of copyright infringement and the ownership of a software program's output, the US Court of Appeals for the Ninth Circuit determined that downloading...

United StatesIntellectual Property
Blake Wong
Blake Wong
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Addressing the de minimis requirement of copyright infringement and the ownership of a software program's output, the US Court of Appeals for the Ninth Circuit determined that downloading pirated software was not a de minimis act and could constitute copyright infringement even where the pirated software was never installed. The Ninth Circuit further explained that there was no copyright in the output of a software program, unless the software (as opposed to the user) was the primary author of that output. Design Data Corp. v. Unigate Enterprise, Inc., Case No. 14-16701 (9th Cir., Feb. 9, 2017) (Hawkins, J).

Unigate creates models of steel components in two- and three-dimensional CAD files using contractors in China, then sells the models to clients in the United States. Unigate advertised that it had the ability to provide its services using a CAD software program owned by Design Data. However, Unigate never purchased a license to the Design Data program and

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