Software copyright infringement litigation (sometimes called software anti-piracy claims) comes in an array of varieties. Frequently, it is functionally indistinguishable from disputes involving literary or audio-visual works and centers on claims that an infringer copied a copyright owner's work and then sold that work as the infringer's own in pursuit of an undeserved profit. Software licensing and counterfeiting disputes comprise the majority of such claims and are very common in light of large publisher and trade group initiatives aimed at enforcement in these areas. Moving across the spectrum of complexity, because software is almost universally distributed under a licensing regime, rather than sales of copies, many other actions involve claims that a defendant used software outside the scope of the relevant license and thereby infringed the copyright. These matters usually require a more nuanced approach by a reviewing court, because they require a determination of whether the actions or omissions at issue constituted use outside the scope of the license - and therefore copyright infringement - or merely breaches of independent license terms, for which the plaintiff must seek damages, if any, in contract law.
However, a third class of software copyright litigation - what might be labeled "competing works litigation" - typically requires substantially more effort from the parties and the tribunal than either of the above types of disputes. In these cases, the developer or owner of one program complains that a different product created or distributed by the defendant consists, in whole or in part, of the work in which the plaintiff holds the copyright. These cases on average involve significantly higher stakes than other software copyright disputes, in that they can threaten the defendant with elimination of an entire line of business or even, in some cases, with the cessation of business operations altogether. The legal analyses and factual development in such matters can approach the level of complexity usually associated with patent disputes, and, indeed, many of the considerations in such matters likely would be familiar to dedicated patent law practitioners.
