Implied Licenses in Software Licensing

In Numbers Licensing LLC v. bVisual USA Inc. [91 U.S.P.Q.2d 1946 (E.D. Wash. July 15, 2009)], the United States District Court for the Western District of Washington addressed the implied license defense in the software licensing context. The court denied plaintiff's motion for a preliminary injunction based on alleged copyright infringement of plaintiff's copyrighted source code, holding that defendant had obtained an implied license to continue using and modifying the source code and the balance of hardships favored defendant.

Defendant bVisual USA Inc. (bVisual) developed and sold Internet-based audio and video conferencing services. In April 2005, bVisual's owner constructed the conceptual framework for a video conferencing platform and began hiring outside software engineers to turn his vision into a reality. Rand Renfroe was hired to develop the source code for the system over a three-year period. Mr. Renfroe owned Numbers Consulting, Inc. (Numbers) and