Those in the business of tracking and monitoring illegal software usage with “phone home” technology should be held to a strict reading of the statute of limitations.
As a seasoned software copyright lawyer having handled hundreds of infringement defense matters with various companies such as Ansys, Siemens, Autodesk, Microsoft, Solidworks/Dassault, Vero/Hexgaon, Synopsis, and others, I have come to find a common trend that may need legislative addressing. This deals with companies that use “phone home” technology that notifies the software publisher whenever unlicensed software is being used.
The companies in this arena vary, and this monitoring of a company is typically justified by an alleged consent to the terms of the end-user license agreement (“EULA”) which sets forth that the company can do this to protect its intellectual property.
While this is understandable, the problem becomes that in many cases I am noticing “hits” or “usage” going back four, five, or even six years. This raises a potential statute of limitations issue (the SOL for copyright infringement is three years from the date of discovery).
In these cases where you have companies that are in the business of monitoring and tracking users, they should be required to act within three years to pursue a claim in federal court. Instead, we don’t see this and the typical response is “we just discovered the infringement.”
This is not really true because they have been tracking illegal use of say a pirated program from a torrent site like Pirate Bay, but trying to rack up the hits (failure to mitigate damages) by waiting around and seeing how many uses a company can rack up before the publisher does something about it five years later.
There should be a strict rule from the courts, or a statute, stating that these companies who routinely employ these monitoring measures must bring their action within three years of the first logged illegal use of the software.